Minnesota

[You can access the original webpage HERE through the Internet Archive Wayback Machine. Most of the links below are no longer active.]

Fall 2006 50 Questions project

Note: The following is a compendium of election administration questions and answers identified by the EL@M team as important for the November, 2006 election. The information was gathered from publicly available sources, and is intended as an objective, nonpartisan summary. It is not intended to constitute legal advice. Those seeking legal advice should retain an attorney.

Eligibility and Registration

1. What are the requirements for eligibility to vote?

A person is eligible to vote in Minnesota if he or she is eighteen years old and a citizen of the United States at the time of the election and has been a resident of Minnesota for at least twenty days before the election. M.S. 201.014.

People are ineligible to vote if they have been convicted of a felony, unless their civil rights have been restored. They are also ineligible when a court places them in a guardianship that revokes their right to vote or when a court finds them legally incompetent. M.S. 201.014.

The above statutes reflect rights specified in the Minnesota Constitution Art. 7, Section 1, which states that every person eighteen or over who has been a United States citizen for three months and has maintained residence in the relevant precinct for at least thirty days prior to an election is entitled to vote.

M.S. 200.031 outlines some principles courts should use to determine residence. Basically, people are residents where they maintain a physical presence and intend to remain. Melendrez v. O’Connor, 654 N.W.2d 114, 118 (Supreme Court of Minnesota, 2002).

2. What procedures must eligible voters follow to register?

A voter may register by filling out a form and submitting it to the county auditor or Secretary of state either in person or by mail. M.S. 201.054. In addition, Minnesota law includes special procedures allowing voters to register in person on Election Day, and special procedures allowing them to register when sending in their absentee ballots. M.S. 201.054; 203B.04.

I. Sufficient registration

A voter application is sufficient to be processed if it contains all four of the following:

1. The voter’s name
2. The voter’s date of birth
3. The voter’s address (zip code not required)
4. Current and valid driver’s license or state ID card number
   Exception: Voters who do not have a driver’s license or state ID may include their social security number. Voters who do not have ID or a social security number may write “none” (link here).

The statute states that no eligible voter may be prevented from voting unless his or her registration application lacks one of the above items or the voter is challenged under M.S. 201.195 or 204C.12 (see question 17). M.S. 201.071(3). The county auditor shall notify voters when one of these items is lacking, and will attempt to obtain the needed information by contacting the voter. M.R. 8200.2900. For driver’s license, state ID, or social security information, the auditor will also attempt to obtain the information through the verification process described in question 3.

The auditor will also notify the voter if the voter submits an application that is incomplete as defined by M.S. 201.121(1)(f) or M.S. 201.061(1a). M.R. 8200.3100. Though they both refer to “incomplete” applications, these statutes describe different situations. M.S. 201.121(1)(f) states that an application is incomplete when the county auditor cannot determine that information contained on the application and information in Department of Public Safety databases relates to the same person. The notice sent out in this situation is described in question 3.

M.S. 201.061(1a) states that an application is incomplete when a first-time voter registers by mail and all of the following are true: the voter has not previously voted in Minnesota for federal office, the voter did not include proper proof of residence with his or her application, and the county auditor is “unable to verify” the voter’s driver’s license number, state ID card number, or social security number written on his or her application. The notice sent out in this situation is described in the subpart “Registering by mail,” below.

II. Timely registration

Properly completed registration forms submitted after the relevant deadline will still be processed, but will not allow the voter to vote in the upcoming election. Voters who submit such applications will receive a notice that their applications were late and that they must register on Election Day to vote in the upcoming election. M.R. 8200.3110.

Deficient registration forms submitted after the relevant deadline will not be processed, but will trigger a notice that the applicant must use Election Day registration to vote in the upcoming election. M.R. 8200.2900.

III. Proof of residence

All newly registering voters must present some form of proof of residence. The only exception to this is voters who register in person at least twenty-one days before Election Day. What constitutes proper proof of residence is explained in question 13.

IV. Methods of registration

A. Registering in person

A voter may register by filling out a form and submitting it to the county auditor or Secretary of state in person. M.S. 201.054. Forms received no later than 5:00 p.m. on the twenty-first day preceding the election will be accepted. Voters who submit the application in person do not have to present proof of residence.

B. Registering by mail

Mailed applications will be processed if received by no later than 5:00 p.m. on the twenty-first day preceding the election. However, voters who register by mail will have to conform to special requirements if all three of the following conditions are present: the voter has not previously voted in Minnesota for federal office, the voter did not include proper proof of residence with his or her application, and the county auditor is “unable to verify” the voter’s driver’s license number, state ID card number, or social security number written on his or her application (see question 3 for information about the verification process). M.S. 201.061(1a). In this situation, the auditor will send the voter notice that his or her registration is incomplete. To complete the registration, the voter may do any of the following: present proper proof of residence to the auditor more than twenty days before the election; register in person or before election day; follow special procedures for registering together with the submission of an absentee ballot; provide proof of residence by one of the methods approved for election day registration.

C. Registering on Election Day

Voters may register on Election Day by appearing at the polls, completing a registration application, taking an oath and providing proof of residence (see question 13). M.S. 201.061(3). The voter will then be allowed to cast a regular ballot. Officials will forward the completed application to the county auditor, who shall add the voter to the statewide registration database unless the application is “substantially deficient.” M.S. 201.061(4). If the application is substantially deficient, the county auditor will give written notice to the voter.

D. Registering together with an absentee ballot

Finally, voters who are eligible to cast absentee ballots (disabled voters, voters who will be out of town on Election Day) may register by submitting a registration application together with their absentee ballots. M.S. 203B.04(4). Like most other registrants, these voters must present proof of residence. However, rather than presenting proof of residence to the Secretary of State or county auditor, they need only present proof to a proper witness. Id. A proper witness is any person registered to vote in Minnesota, any notary public, or any “other individual authorized to administer oaths.” M.S. 203B.07. If hand-delivered by a third party, the absentee ballot and registration card must be received by 3:00 p.m. on Election Day. M.S. 203B.08. The registration may also be mailed or hand-delivered by the voter, and will be processed as long as it is received by the time specified on the instructions to the voter contained on the absentee ballot. Currently, the Secretary of State requires mailed applications to be received by Election Day, and applications hand delivered by the voter to be received no later than 5:00 p.m. on Election Day.

Voter Registration and Database Management

3. What process, if any, is the state following in matching voter records in its statewide registration database against Social Security and state motor vehicle records?

Minnesota Statute 201.022 provides that the Secretary of State shall create a statewide voter registration database that is coordinated with other agency databases in the state. Minnesota has two sets of processes for coordinating the database in this way. The first set of processes verifies information contained in incoming registration applications. The second set of processes modifies records of existing registrations contained in the database to keep them up-to-date. The second set is described in question 10, below.

Verifying incoming registration applications

Minnesota Administrative Rule 8200.9310 determines how information on incoming voter registration applications is verified. There are two steps to the process. The Secretary of State performs the first step, and county auditors follow up with the second step. The Minnesota Administrative Code also includes special rules for verification of registration cards submitted as part of Minnesota’s special Election Day registration (EDR) program.

I. The Secretary of State’s duties

In this first step, the Secretary of State must attempt to verify the application against information contained in one of two databases: A state database maintained by the Department of Public Safety, or a federal database maintained by the Social Security Administration. M.R. 8200.9310. In either case, the verification must occur within ten days after initial application is received and noted in the statewide registration database. M.S.A. 201.121. The database used depends on (a) whether the applicant has a driver’s license or state ID card and (b) whether the applicant has a social security number.

If the applicant has a driver’s license or state ID card, the driver’s license or state ID card number should be indicated on the registration application and the Secretary should verify those numbers with the numbers on file with the state Department of Public Safety. M.R. 8200.9310. The Secretary must enter into an agreement with the Department for this purpose. M.S. 201.1615. The Secretary should also compare the applicant’s name and date of birth with the records of that office. If the information matches up exactly, the registration is “verified” under the meaning of the rule. M.R. 8200.9310. Inexact matches cannot be verified at this stage in the process, but may be verified later by the county auditor, as described below.

If the applicant has neither a driver’s license nor a state ID card but does have a social security number, the last four digits of the applicant’s social security number should be indicated on the application and the Secretary of State should verify those numbers with the numbers on file with the federal Social Security Administration. M.R. 8200.9310. The Secretary must enter into an agreement with the SSA for that purpose. M.S. 201.1615. The Secretary should also compare the applicant’s name and date of birth with the records of that office. M.R. 8200.9310. As with the above procedure, the registration is “verified” if the information matches up exactly.

If the applicant has no driver’s license, no state ID, and no social security number and the applicant indicates this on the registration form, the above requirements do not apply and the registration is considered “verified.” M.R. 8200.9310.

After attempting to verify the information, the Secretary must follow-up with the auditor in the county where the applicant resides. First, the Secretary will forward daily reports of registration applications that matched up exactly with the relevant database and were therefore verified. M.S. 201.022 ; M.R. 8200.9310.

Second, the Secretary must forward reports of registration applications that the Secretary “cannot be verified with certainty …” Id. In this case, the Secretary’s report must “match and contrast” the information contained in the various databases. M.R. 8200.9310. The Secretary shall provide these type of reports to the appropriate county auditor on a weekly basis. M.S. 201.121(1)(d).

Finally, the Secretary must forward reports of registration applications that did not match the information in the relevant database. M.R. 8200.9310.

Each report must show the information contained in each database at the time it was checked. Id. In addition, if the relevant application was “incomplete,” the Secretary’s report must also include a list of “potential matches.” Id. Incomplete applications are applications of voters who have not previously voted in a Minnesota federal election, who failed to conform to identification requirements, and whose application information cannot be verified. M.S.A. 201.061.

II. The county auditor’s duties

The second step of the process begins after the Secretary’s reports are completed. Within ten days of the time the reports are added to the statewide registration system, the county auditor will review the reports and will attempt to verify the ones that the Secretary could not verify with certainty. M.R. 8200.9310.

Much like the first step, the second step involves looking at Department of Public Safety and Social Security Administration information and comparing it to information marked on the application. However, unlike the first step, the second step does not require a perfect match for an application to be verified. Instead, the county auditor will process an application as verified if the county auditor can “reasonably conclude” that the information in the application and the information in the relevant state database “relate to the same person.” M.R. 8200.9310. If the county auditor verified the application this way, the auditor will note in the statewide system the basis for concluding the two sets of information relate to the same person.

Also unlike the first procedure, in the second procedure the auditor must go beyond the information contained in databases by contacting the applicant via mail, telephone or email to obtain any information to verify the registration. Id. The auditor must record in the statewide database all registrations that were verified this way, and must also record all registrations that could not be verified.

If the applicant omitted required information on the application form and fails to provide it after the auditor’s verification attempt, the auditor must mail a notice to the applicant that the application will not be processed unless the applicant provides the required information at least twenty-one days before the election or registers on Election Day. M.S. 201.121 ; M.R. 8200.3100. The auditor will record this voter’s status as “incomplete.” Id.

If there is a discrepancy between application information and the information maintained in the government databases, the auditor will notify the applicant by mail to contact the registration office. M.R. 8200.5500.

III. Verification of Election Day Registration applications

Verification of registration applications completed at the polls on Election Day will be verified using the same processes described above. M.R. 8200.5500(2). In addition, however, the rule states that when an application cannot be verified, the auditor will “investigate and attempt to resolve the discrepancy.” Id. The county auditor must also send notices to these individuals informing them that their applications cannot be verified, and requesting that they contact the auditor’s office. If the voter fails to provide information resolving the discrepancy, the auditor must mark the voter’s status in the database as “challenged” and may refer the matter to the county attorney for potential violation of the election laws. If, during this process, the Department of Public Safety informs the auditor that this individual is ineligible to vote, the county auditor must refer the matter to the county attorney.

4. If a new voter registration card is rejected because the information it contains is slightly different than the information contained in other state databases concerning that same voter (suppose the bureau of voter vehicles has the name of the driver with that license number as “Andrew Smith” whereas the voter registration card with that license number provided as ID says “Andy Smith”), what opportunity does the voter have to correct that error, and will a provisional ballot cast by that voter count?

The voter will receive a notice to contact the county auditor to correct the discrepancy. If the voter does not do so, the registration will not go through. However, the voter may register at the polls on the day of election and, if that registration goes through, the vote will be counted. Minnesota does not have provisional voting.

Generally, a slight discrepancy between information contained on a registration application and that contained in state databases will not preclude successful registration as long as the county auditor can reasonably conclude that both sets of information relate to the same person. M.R. 8200.9310.

However, if the auditor cannot reasonably make this conclusion, the auditor must notify the voter that the application is incomplete as defined by M.S. 201.121(1)(f) or M.S. 201.061(1a). M.R. 8200.3100. Though they both refer to “incomplete” applications, these statutes describe different situations. M.S. 201.121(1)(f) states that an application is incomplete when the county auditor cannot determine that information contained on the application and information in Department of Public Safety databases relates to the same person. The notice sent out in this situation will:

1. Inform the voter that the registration is incomplete
2. Inform the voter that to complete the registration, the voter must present documents or take action prior to voting
3. Explain that the voter may do this by completing the registration at least twenty-one days prior to the election or at the polls on Election Day
4. List what documents may be provided to complete the registration
5. Explain that the voter may reregister using Election Day registration.

M.R. 8200.3100. The reference to documents probably refers to documents that may be presented to fulfill the proof of residency requirements described in questions 2 and 13.

M.S. 201.061(1a) states that an application is incomplete when a first-time voter registers by mail and all of the following are true: the voter has not previously voted in Minnesota for federal office, the voter did not include proper proof of residence with his or her application, and the county auditor is “unable to verify” the voter’s driver’s license number, state ID card number, or social security number written on his or her application. Notice sent out in this situation will advise the voter that he or she needs to provide information that completes the registration at least twenty-one days before the election or provide that information to election judges for entry on the roster on Election Day. M.R. 8200.3100. An applicant will not be allowed to vote without fulfilling these requirements.

If all of the above procedures fail, the voter may simply re-register at the polls. See M.S. 201.061(3). At that point, unless an election judge challenges the voter’s right to vote, the voter will be allowed to cast a regular ballot that will be counted just like any other. The Election Day registration application will be verified under M.R. 8200.9310 just like a regular application. M.R. 8200.5500(2). If the application cannot be verified, the voter will receive a notice requesting that the voter contact the registration office. If the voter does not then provide information verifying the application, the auditor will mark the voter’s registration as challenged and may refer the matter to the county attorney for prosecution.

5. If a provisional ballot is rejected because the voter is unregistered according to records in the state’s new centralized voter registration database, what additional procedures (if any) must state officials undertake to see if the omission of this voter from the database is erroneous? (For example, must the state election officials double-check with the state’s bureau of motor vehicles to determine if any new registration forms, although submitted by the voter on time, were delayed in being transmitted to the board of elections?)

Minnesota does not have provisional voting.

6. Before rejecting a provisional ballot on the ground that the voter is unregistered according to records in the state’s new centralized voter registration database, what procedures (if any) does the state have for requiring its officials to check whether the voter is listed in the database under slightly different information than provided on the provisional ballot (for example, “Andy” instead of “Andrew”; middle name instead of middle initial; 125 Elm “Street” instead of 125 Elm “Road”)?

Minnesota does not have provisional voting.

7. If a provisional ballot is rejected because the signature on the ballot does not match the signature in the state’s centralized voter registration database, does the state have any objective standards for making this signature-mismatching determination?

Minnesota does not have provisional voting. However, it does attempt to verify voters’ signatures in some situations. For regular in-person voting, voters must sign a polling place roster upon entering the polling place, but there is no requirement that officials compare that to any sample kept on file. M.S. 204C.10. Absentee ballots will be rejected if a majority of election judges decide, after comparing the return envelope with the application for the absentee ballot, that the signature contained on the return envelope is not genuine (but if a person other than the voter requested the ballots, the signatures need not match). M.S. 203B.12. The statute does not require that judges have any “objective” way of making this determination — only the naked eye.

8. What opportunity in general does a voter have to determine whether the submission of a new registration form has successfully resulted in the voter’s inclusion in the state’s database of registered voters and, if the voter learns that the submission was unsuccessful, to rectify the problem before Election Day (thereby enabling the voter to cast a regular rather than provisional ballot)?

Upon successful registration, the voter will received from the county auditor a notice stating the voter’s name, address, precinct and polling place. M.S. 201.121(2). On the other hand, if the county auditor and the Secretary of State find problems with the registration application (the county auditor cannot reasonably conclude the application and the information contained in the state’s Department of Public Safety relate to the same person under M.R. 8200.9310), the county auditor will send a notice of incomplete registration to the voter. M.S. 201.121(2)(e)-(f) ; M.R. 8200.3100 (see question 4). Voters may cure whatever defects exist in their applications by contacting the county auditor and completing their registrations at least twenty-one days before the election, or may complete the information at the polls on Election Day.

Individuals who attempt to register but are ineligible will be notified of their ineligibility under M.R. 8200.3500. Individuals who register after the deadline of twenty-one-days before the election will be notified that, to vote in the upcoming election, they must register at the polls. M.R. 8200.3110. Otherwise, those voters’ registrations will become effective the day after the election.

Voters may also visit the offices of the county auditor and inspect a “public information list” containing basic information about every registered voter in the county. M.S. 201.091(4). When voters request a copy of the list, the county auditor must provide it to them within ten days of the request. M.S. 201.091(5). The request may specify electronic or other media. M.R. 8200.6400. A charge may apply to obtaining the lists.

Finally, individuals may view the official polling place roster for an election by providing identification and a written request. M.R. 8200.9120.

9. If it is determined that a new voter registration card was not included in the state’s database of registered voters because of an error committed by a third-party registration group (for example, the group failed to deliver the card on time), will a provisional ballot cast by the voter count?

Minnesota does not have provisional voting. If the original registration attempt is unsuccessful, the voter may register on Election Day and cast a regular ballot.

Generally Minnesota law does not make any distinction between errors made individuals registering voters and errors made by voters themselves. Individuals who accept completed voter registration applications from voters must submit those applications within ten days. M.S. 201.061. However, a third party’s failure to meet this requirement does not render the application “deficient” and thus will not result in rejection of the application. M.S. 201.071. Still, the application must be received at least twenty-one days before the election to be successful.

10. (A) When will a voter’s registration be canceled?

(A) Voters’ registrations may be canceled or modified for ten reasons: Death, change of address, removal at request of voter, change of name, placement in court guardianship, felony conviction, removal after a successful eligibility challenge, failure to vote, and failure to respond to either of two types of registration confirmation notices.

1. First, every month the state Commissioner of Health gives the Secretary of State information identifying individuals who have died. The Secretary will forward this information to the county auditors, who will change the voters’ records to “deceased” status. M.S. 201.13. M.R. 8200.3700 explicitly states that the county auditor need not send any notice in this case.

2. Second, the Secretary of State may use the United States Postal Services’ change of address service to identify voters who have moved. M.S. 201.13. The county auditor “may” then delete these voters’ records from the registration database. The county auditor “may” notify these voters of their deletion and the reasons for the deletion. M.R. 8200.3700.

3. Third, the county auditor will remove a voter’s record from the database if the voter submits a written request to this effect. M.S. 201.13. The county auditor “may” notify these voters of their deletion and the reasons for the deletion. M.R. 8200.3700.

4. Fourth, courts will notify county auditors when voters change their names. M.S. 201.14. While the statute does not state that the county auditor will cancel voters’ registrations for this reason, it does provide that the county auditor will notify the voters that they must reregister under their new names in order to vote. Practically speaking, this amounts to the same thing. The law is silent as to notice to the voter.

5. Fifth, courts will notify the Secretary of State when voters are placed in guardianships that revoke the voters’ rights to vote or when voters are judged legally incompetent. M.S. 201.15. The county auditor will change the database to show that the individual may not reregister to vote. The law is silent as to whether these individuals should receive notice of the change. If courts restore the individual’s right to vote, the county auditor will change the database to reflect this.

6. Sixth, courts will notify the Secretary of State of new felony convictions and the restoration of civil rights of those previously convicted of felonies. M.S. 201.155. It is unclear whether the Secretary of State should respond by deleting the voter’s record, or merely by changing its status. The statutes and regulations are silent as to notice of the change. However, voters will receive notice if their voting rights are restored. M.R. 8200.3550.

7. Seventh, a voter’s registration may be canceled if that voter’s registration is successfully challenged under M.S. 201.195. (A voter may be challenged for any of the reasons, and following the procedures, described in question 17.) The county auditor must notify the voter of the challenge hearing within five days of when the challenge is filed. Furthermore, if the hearing results in the voter’s removal from the database, the voter “may” receive notice under M.R. 8200.3700.

8. Voters’ registrations will not be canceled for failure to vote. However, if a voter fails to vote in four consecutive years, the Secretary will change the voter’s status in the database to “inactive.” M.S. 201.171. Inactive voters may not cast a ballot unless they first reregister. Former M.R. 8200.9700 gave voters whose registrations were changed to “inactive” a right to notice. However, the amended rule is silent about inactive voters and merely states that voters “may” receive notice upon removal of their registrations from the database.

9. To prevent fraudulent voting and eliminate excess names, the county auditor may mail to an existing registered voter a request that the voter confirm the information contained in the registration database. M.S. 201.12. In addition, the auditor must send out a similar notice to any newly registered voter (under M.S. 201.121(2)) and to any voter with a recently changed address (under M.R. 8200.2600). If the request is returned undeliverable, the county auditor “shall ascertain the name and address of that individual.” Id. The auditor will change the registrant’s status in the database to “challenged” if auditor ascertains the individual does not live at the address where the auditor sent the request for confirmation. “Challenged” status prevents a voter from casting a ballot unless the voter complies with M.S. 204C.12, which requires the voter to answer questions regarding residency to the satisfaction of an election judge. If the auditor sends a second notice at least sixty days after the first was returned and the second notice is returned undeliverable, the auditor shall change the registrant’s status in the database to “inactive.” The law is silent as to whether individuals whose status is changed to “challenged” or “inactive” in this way are entitled to notice.

10. In a separate but similar procedure, within ten days after an election the county auditor will send a notice confirming existing registration to a random sampling of voters. 201.121. The method of determining the random sampling is left up to the Secretary of State’s Office, which currently sends out random notice to three percent of registered voters within the ten-day deadline. M.R. 8200.2700. If the notice is returned undeliverable, the auditor shall attempt to determine the reason for the return. Auditors that do not obtain “satisfactory proof” of an individual’s eligibility to vote shall immediately notify the county attorney and Secretary of State. The county attorney must then investigate the case and, upon a finding of probable cause, bring charges. M.S. 201.275. If the county attorney intentionally fails to investigate or prosecute such a case, that attorney commits a misdemeanor and will be removed from office. The statute does not state that voters’ registrations will be removed when these notices are returned undeliverable.

As soon as practicable after the election, the county auditor will send out a second wave of notices covering all those registered voters not covered by the initial random sampling. Id.

10. (B) What is the last date before an election on which state officials may purge voters from their voter registration database?

County auditors must prepare a “final corrected master list” of registered voters at least seven days before the election. M.S. 201.091. Despite the nomenclature, it is not clear from the language of the statute that this is the same information that will be used to confirm registration at the polls — voters sign another document, called a roster, before they are allowed to vote. M.S. 204C.10.

The National Voter Registration Act, in federal elections, requires states to complete any systematic program for the removal of names not later than ninety days before the upcoming election. 42 USCA 1973gg-6.

10. (C) What kind of notice must the state provide voters before purging their registrations from the database?

None. State law does not provide voters whose registrations are purged a right to notice, although there is nothing to prevent county auditors or the Secretary of State from providing such notice.

M.R. 8200.3700 provides that county auditors “may” send notice to voters whose registration records have been removed from the database. The permissive language seems to indicate that the decision whether to send notice is discretionary. In addition, this provision does not address whether voters whose records are not removed from the database, but are merely modified to “inactive” or “challenged” status, should receive notice of the modification. Therefore, it is unknown whether Minnesota voters can expect to receive notice when their voting status is changed.

It should be noted that the NVRA requires, and Minnesota provides, some notice of impending cancellation in procedures 9 and 10, described in question 10(A), above. 42 USCA 1973gg-6. No law explicitly requires notice of actual cancellation after the fact.

10. (D) What opportunity must the state give voters to challenge the purge of their registration (either prior to Election Day, or during the process of reviewing provisional ballots)?

In procedures 1-6, there is nothing a voter can do to prevent the registration database from being changed. However, because Minnesota has Election Day registration, voters may simply reregister on that day and cast a regular ballot. In addition, “if it appears upon examination that the voter’s name was erroneously omitted from the [polling place] roster” of registered voters, the voter must be allowed to vote just like any other voter. M.R. 8200.3800. That regulation does not explicitly state how poll workers should determine whether a voter was “erroneously omitted,” but it does state that such voters, when permitted to vote this way, will have done so “pursuant to instructions from the county auditor ….” Id. This seems to indicate that poll workers should contact the county auditor to determine whether the omission was erroneous.

Voters challenged under procedure 7 must attend the challenge hearing and defend their rights to vote. Voters whose registrations records are changed to “challenged” or “inactive” status must follow the particular procedures prescribed for remedying that status.

If a voter’s registration has been marked “challenged,” election judges will question that voter at the polls regarding his or her residence and right to vote. M.S. 204C.12. However, the election judge will allow the voter to cast a ballot unless the answers to the judge’s questions show the voter is not entitled to vote in that precinct (the challenged voter does not carry the burden of proof — just the opposite). The voter will not be allowed to vote if he or she refuses to answer the questions. Voters will also not be allowed to vote if they leave the polling place without answering the questions, even if they return later ready to answer them.

Voters whose records have been marked inactive must reregister at least 21 days before the election or at the polls. M.S. 201.171; 201.054.

Voters who feel that their registrations have been improperly removed might also be able to file a Help America Vote Act complaint under M.S. 200.14. Complaints regarding actions of the Secretary of State’s office will be heard by the State Office of Administrative Hearings, which, after making its decision, may order a “remedial plan.” Complaints regarding actions by authorities other than the Secretary will be heard by the Secretary. The statute does not specifically state that is procedure may be used to prevent removal of a voter’s record or to undo removal of a voter’s record, but it does state that the procedure is designed to review complaints about “computerized statewide registrations lists and equipment.” Id.

11. What procedure has the state adopted to notify voters whether their provisional ballots were counted; what procedures if any has the state adopted to notify the public of the percentage of provisional ballots that have been rejected as ineligible and the specific ground for this rejection?

Minnesota does not have provisional ballots.

12. What types of regulations apply to third-party organizations and individuals who wish to help register voters?

Unlike some states, Minnesota has very few regulations governing third-party voter registration drives.

Individuals who accept completed voter registration applications from voters must submit those applications within ten days. M.S. 201.061. No individual shall help a voter register in a precinct where that voter is not eligible, help a voter register in multiple precincts, or misrepresent an individual’s identity when attempting to register. M.S. 201.054.

Identification

13. What is the last date for the submission of new registration forms, and what ID must be submitted with these forms?

To register prior to Election Day, applications must be received at least twenty-one days before the election. However, voters may also register at the polls on Election Day. The type of ID required depends on what method the voter uses to register.

A. ID required for registering in person

Voters who submit the application in person do not have to present proof of residence. However, they must write either a Minnesota driver’s license number or state ID number on the registration application. M.S. 201.071. Voters who do not have ID numbers may use their social security numbers. Voters who do not have ID or social security numbers should write “none” on the application to ensure it is properly processed.

B. ID required for registering by mail

Voters who register by mail and who have never before voted in a Minnesota federal election must present ID if the county auditor is unable to verify the driver’s license numbers, state ID card numbers, or social security numbers written on their applications (see question 3 for information about the verification process). M.S. 201.061(1a). The voter may present identification twenty-one days before the election or may present identification at the polls on the day of election to meet this requirement. The required identification can be any those permitted for Election Day registration under M.S. 201.061(3)(a)(see next section). M.S. 201.061(1a).

C. ID Required for registering on Election Day

Persons attempting to register on Election Day must prove residence by presenting certain forms of identification. M.S. 201.061(3)(a). The requirements governing what identification is sufficient for Election Day registration are controlled by M.S. 201.061. However, that statute allows the Secretary of State to approve additional forms of ID as proper and, consistent with that power, the Secretary has issued an administrative regulation that is much more detailed. That regulation states that proper ID for Election Day registration may include any of the following:

For voters with ID stating current address:

1. A valid driver’s license with current address. M.R. 8200.5100(1)(A)(1);
2. A valid learner’s permit with current address. M.R. 8200.5100(1)(A)(1);
3. A receipt for a valid driver’s license or valid learner’s permit with current address. M.R. 8200.5100(1)(A)(1);
4. A valid state ID card with current address. M.R. 8200.5100(1)(A)(2);
5. A receipt for a valid state ID card with current address. M.R. 8200.5100(1)(A)(2);

For students:

1. A current student ID with current address. M.R. 8200.5100(1)(A)(3);
2. A current student fee statement with current address. M.R. 8200.5100(1)(A)(3);;
3. A copy of a current student registration card with current address. M.R. 8200.5100(1)(A)(3);

For others:

1. A tribal ID card with name, address, signature, and photograph. M.R. 8200.5100(1)(A)(4);
2. Having a valid registration in the same precinct under a different address. M.R. 8200.5100(1)(B);
3. A notice of late registration mailed by the county auditor or municipal clerk under M.R. 8200.3110. M.R. 8200.5100(1)(C);
4. Having a registered voter in the precinct sign an oath attached to the voter registration application. M.R. 8200.5100(1)(D). The oath states that the person making the oath knows the applicant and knows he or she lives in the precinct. M.S. 201.061(3)(a)(4);

For voters without ID stating current address:
13. Certain forms of identification combined with a utility bill. The utility bill must be an original bill, not a copy. It may be a bill for gas, electric, telephone, cell phone, cable TV, water, garbage or sewer. M.R. 8200.5100(2)(B). It must contain the voter’s name and address and it must have been issued within thirty days of the election. Any of the following are sufficient if combined with such a utility bill:

1. A Minnesota driver’s license with voter’s name and photograph (current address not required)
2. A Minnesota ID card with voter’s name and photograph (current address not required)
3. A United States passport with voter’s name and photograph (current address not required)
4. A US military ID card with voter’s name and photograph (current address not required)
5. A Minnesota student ID (current address not required)
6. A tribal identification card with voter’s name, photograph and signature (current address not required). M.R. 8200.5100(2)(A)-(B).

14. A Minnesota university ID with photograph, but only if the university submitted a list of students living in university housing and the name, address and student ID number on the university ID match up with the information submitted by the university. 8200.5100(3).

This regulation does vary slightly from the requirements of M.S. 201.061(3), the controlling statute. However, it tends to expand, rather than limit, the number and types of permitted ID. The Secretary’s digest of these requirements may be found here.

D. Registering together with an absentee ballot

Rather than presenting proof of residence to the Secretary of State or county auditor, voters casting absentee ballots need only present proof to a proper witness. M.S. 203B.04(4). A proper witness is any person registered to vote in Minnesota, any notary public, or any “other individual authorized to administer oaths.” M.S. 203B.07. Any type of ID that is valid for Election Day registration is also valid for absentee registration. M.S. 203B.04(4). The Secretary of State’s digests of the absentee registration ID rules may be found here and here (page 14 and 15).

14. What ID must be submitted at the polls to cast a regular rather than provisional ballot?

No ID is required to cast a regular ballot at the polls unless the individual is not fully registered (including first-time mail-in registrants who did not present proper identification with their registration applications — see the section called “Registering by mail” under question 2). Identification requirements for voters with registration problems are described in question 13.

15. What ID is necessary to receive an absentee ballot? What ID must be submitted when casting an absentee ballot in order for it to count?

No ID is required to cast an absentee ballot unless the individual is not fully registered (including first-time mail-in registrants who did not present proper identification with their registration applications — see the section called “Registering by mail” under question 2). Identification requirements for voters with registration problems are described in question 13.

Registration/Voter eligibility

16. In what circumstances if any are previously convicted felons eligible to vote?

Felons who have had their civil rights restored are eligible to vote. M.S. 201.014. A felon’s civil rights are automatically restored when the felon completes his or her sentence, including parole or probation periods, or the sentence is discharged. M.S. 201.071.

17. In what circumstances, either prior to or on Election Day, may the eligibility of a registered voter be challenged by another voter or by an election officials? If challenged, what opportunity does the registered voter have to defend his or her eligibility, and is the consequence of an unsuccessful defense the obligation to cast a provisional ballot, or the denial of any ballot altogether?

Voters may be challenged for many reasons either prior to or on Election Day. Voters challenged prior to Election Day are entitled to notice and a hearing and may appeal. Voters challenged on Election Day at the polls must attempt to persuade an election judge that they are entitled to vote. There is no appeal.

Challenges by any registered voter filed before Election Day
Upon petition filed with the county auditor, any registered voter within a county may challenge the eligibility or right to vote of any other voter in that county. M.S. 201.195. The form of the petition is visually laid out in M.R. 8200.9950. The petition shall state the grounds for the challenge and must be accompanied by an affidavit stating that the challenge is based upon the challenger’s personal knowledge. Within five days after the filing of the petition, the county auditor will set a challenge hearing date and notify the challenger by mail. A copy of the challenge petition and a notice of hearing shall be served on the challenged voter. The hearing shall be held by the county auditor or party designated by the auditor, “who shall then make findings and affirm or dismiss the challenge.” M.S. 201.195. If the challenge is affirmed, the voter’s recourse is to appeal the ruling to the Secretary of State. That appeal must be heard within 5 days of the county level ruling. The Secretary of State will affirm or reverse and will instruct the county auditor what status to give to the voter. M.S. 201.195.

General limitations on challenges
Challenges may only be made upon the challenger’s personal knowledge. M.S. 201.195; 204C.12. On Election Day, a challenger authorized under or another voter may challenge the eligibility or registration of an individual “whom the… [authorized challenger or other voter] knows or reasonably believes is not an eligible voter.” M.S. 204C.12. If an election judge know or reasonably believes an individual is not an eligible voter, the election judge must challenge that individual.

Limitations on Election Day challengers
Election judges may not be challengers. M.S. 204C.07. Challengers must be residents of Minnesota. They may not handle registration cards, files, or lists, and may not make lists of people who have or have not voted. They shall not attempt to influence voters. They shall not converse with voters except in the presence of an election judge, to determine eligibility to vote in the precinct. Election Day challengers must not make challenges on the basis of lists that of voters whose mail is returned undeliverable.

Procedure for Election Day challenges
An Election Day challenge is brought by filling out a form supplied by the Secretary of State. M.S. 204C.12. The form requires the challenger to list the basis for the challenge, the challenger’s personal knowledge, and identification information for the challenger. After completion of the form, an election judge will administer an oath to the challenged individual and “ask… sufficient questions to test that individual’s residence and right to vote.” Id. If the individual refuses to answer the questions, that individual may not vote, even if the individual returns later, ready to answer questions.

Procedure for challenging absentee ballots
An election judge or other individual may challenge the vote of an absentee voter at any time prior to when the absentee ballot is deposited into the ballot box, provided that the election judge or other individual was not present when the voter originally procured the absentee ballot. M.S. 204C.13. If the challenged absentee voter is present in the polling place on Election Day, the election judge or other individual may challenge that voter using the standard procedures outlined by M.S. 204C.12. For challenged absentee voters who do not appear at the polling place on Election Day, challengers must use the procedures outlined by 203B.12, B.17, B.20, B.24, and B.25. For details on those procedures, see question 20.

Challenge triggers
There are many situations where an individual’s right to vote should be challenged by an election judge. Typically, the polling place roster will contain a mark next to the records of these individuals indicating their challenged status. Marks are used in the roster to signify the following deficiencies:

1. The individual has already voted an absentee ballot and cannot vote again.
2. The voter must complete the special ID requirements for first-time voters in Minnesota federal elections.
3. The voter’s residency has been challenged in the registration database.
4. The database shows the voter is disenfranchised for conviction of a felony.
5. The individual’s name is in question.
6. The individual was sent a postal verification card that was returned undeliverable (see the M.S. 201.12 and 201.121 procedures outlined in question 10(A)(9)-(10).

See 2006 Election Judge Guide, page 11. Election Day judges should generally challenge any voter whose registration cannot be verified by the county auditor under M.R. 8200.9310. They should also challenge voters who used Election Day registration in the previous election, but whose information the county auditor could not later verify. M.R. 8200.5500. Finally, they should challenge voters who the Postal Service’s change of address service indicates have changed residence. M.R. 8210.0500.

How Election Day challengers are assigned
In a partisan election, political parties may assign one challenger per party to each polling place. In an election for non-partisan offices, the candidates themselves may assign one challenger each to each polling place. Finally, in elections on a question such as a school levy for example, a city, town, or school board must assign challengers to each polling place if petitioned to do so by twenty-five eligible voters. M.S. 204C.07.

If a voter is challenged who has applied for an absentee ballot, elections officials do not have to serve notice of a hearing or a copy of the petition to the voter. The county auditor will attempt to confirm the eligibility of the voter and will resolve doubts in favor of the challenged voter. If the county auditor finds that the voter is indeed not eligible to vote, he or she must then provide the voter with a copy of the petition and the auditor’s decision and let the voter know that he or she has a right to appeal to the Secretary of State. M.S. 203B.20.

Consequence of successful challenge
If a challenged voter does not satisfactorily answer the election judge’s questions demonstrating that he or she is eligible to vote or resides at the address where he or she is registered to voter, the challenged voter will not be allowed to cast a ballot. Additionally, the challenged voter will not be allowed to vote if he or she refuses to answer the election judge’s questions or sign the polling place roster. M.S. 204C.12.

Absentee/Early Voting

18. What if any specific need must a voter assert in order to receive an absentee ballot (or to vote early)? What are the earliest and latest dates by which a voter can submit an absentee ballot by mail, or in person?

To vote absentee, voters must assert they expect they will not be able to vote in person on Election day due to absence, illness, disability, religious observance, or service as an election judge in another area. The latest date an absentee ballot may be submitted is 5 p.m. the day before the election (3 p.m. on Election Day for voters who return the ballot through an agent). The earliest date an absentee ballot may be returned is unknown.

Asserted need

Minnesota voters may vote absentee if they reasonably expect that they will be unable to go to their polling place on Election Day in the precinct where they reside due to:

• absence from the precinct,
• illness,
• disability,
• religious discipline,
• observance of a religious holiday, or
• service as an election judge in another precinct (see M.S. 203B.04 to 203B.15).

M.S. 203B.02(1).

See Secretary of State’s 2006 City Election Guide, page 18.

In addition, a voter may cast an absentee ballot if his or her absence is due to service in the military, the voter is the spouse or dependent of someone serving in the military, or the voter is temporarily outside the territorial limits of the U.S. M.S. 203B.02(2); 203B.16(1). Finally, a voter who permanently resides outside the U.S. but resided in Minnesota for at least twenty days prior to leaving the country retains the right under federal law to vote in federal elections and may vote absentee in Minnesota. M.S. 203B.02(3); 203B.16(2).

To be approved, an application for an absentee ballot must state that the applicant is eligible to vote by absentee ballot for one of the above reasons. M.S. 203B.04; M.R. 8210.0200.

Deadlines for requesting ballots

Applications for absentee ballots will be accepted anytime until and including the day before the election. M.S. 203B.04. However, if a person returns a ballot application on behalf of another, that application must be returned in person or deposited in the mail within ten days of the date the voter signed it and at least six days prior to the election. M.S. 203B.04(1).

Special procedures and deadlines apply for hospitalized voters and voters who expect to be permanently eligible for absentee voting. M.S. 203B.04(2), (5); 203B.11.

Deadlines for return of completed ballots

Absentee ballots returned in person by the voter must be delivered to the county auditor or municipal clerk by 5 p.m. the day before Election Day. M.R. 8210.2200. If an absentee ballot is returned in person by an agent of the voter, the latest it may be submitted is 3 p.m. on Election Day. M.S. 203B.08; M.R. 8210.2200. Absentee ballots that are returned by mail must be received by the last mail delivery on Election Day. M.S. 203B.08(3); M.R. 8210.0500. Municipal clerks are required to take “all reasonable steps” to make sure that all absentee ballots received by the post office before 4 p.m. on Election Day are delivered to the precincts before the closing of the polls. M.R. 8210.2500. See generally Secretary of State’s 2006 City Election Guide, page 23.

If a voter wishes to cast an absentee ballot in person, he or she may do so during the thirty days prior to Election Day at the county auditor’s office and other polling places designated by the auditor. M.S. 203B.081.

The law does not specify the earliest date by which a ballot may be submitted so this appears to be limited only by the availability of the ballot applications and the ballots themselves.

Early voting

Minnesota does not have early voting. Voters may vote in person by absentee ballot prior to Election Day, but only if they meet the requirements for absentee voting stated in M.S. 203B.02.

19. If it were discovered that supporters of the winning candidate had paid (or otherwise improperly induced) voters to cast their absentee ballots for that candidate, and the number of “bought” absentee ballots exceeded that candidate’s margin of victory, would the state judiciary invalidate the election result and rule the runner-up to be the rightful winner?

The vote-buying candidate would be removed, but it is unclear whether the runner-up would inherit the office or whether the authorities would order another election.

Providing anything of value in exchange for a vote is illegal under the Fair Campaign Practices Act and would result in the offending candidate’s removal from office upon proper complaint to the Minnesota Office of Administrative Hearings. M.S. 211B.13; 211B.17. However, the Act does not describe how to fill the office after removal of the offending candidate, whether by installing the runner-up, holding a special election, or some other measure.

Furthermore, the Fair Campaign Practices Act is not the only body of law that applies. Minnesota’s election contest procedure allows a candidate to contest the election of his or her opponent on the basis of “an irregularity in the conduct of an election or canvass of votes, over the question of who received the largest number of votes legally cast… or on the grounds of deliberate, serious, and material violations of the Minnesota election law.” M.S. 209.02. This provision would allow a contestant to remove an officeholder who attained an office through bribery, but again, would not necessarily result in installation of the successful contestant into the office. The question would depend on a court’s decision to shoehorn the case into one of two categories.

The first category is a “contest that involved an error in the counting of ballots.” M.S. 209.07. In cases that fit into this category, the court will install the successful contestant into the vacant office.

The second category of cases is contests “where there is no question as to which of the candidates received the highest number of votes cast in the election.” Id. In this case, the code explicitly provides that “the [successful] contestant is not, by reason of disqualification of the contestee, entitled to the certificate of election.” Id.

The problem with the above scenario is, it arguably fits into both categories. It fits into the first category because the dispute is about who obtained the most votes — part of the contestant’s argument is likely to be that, once the illegally obtained votes are excluded, he or she obtained the most votes. Yet it also fits into the second category because it is not just about who obtained the most votes; it is also about who is qualified to hold office in the first place. A candidate who violates the Fair Campaign Practices Act during the campaign period may not hold the disputed office even if he or she obtained the most votes, legal or illegal.

There are no cases interpreting this ambiguity in M.S. 209.07. However, there is one case considering a similar dilemma that existed in the Minnesota law of 1957. In Phillips v. Erickson, 248 Minn. 452, the Supreme Court made the distinction between election contests “to determine who of rival candidates was actually elected by a majority of the legal votes” and election contests “to disqualify a winning candidate from holding that office.” Id. at 460-461. The court said that the difference between the two types of cases is that “the former is based on the acts and omissions of those in charge of the election and the latter is based on the [illegal] acts of the candidate.” Id. at 461. The court did not acknowledge that there might be a “mixed case” where a correct count of legal votes was not reached because of illegal acts of a candidate. At the conclusion of the first type of case, the court said, the runner-up is installed into the disputed office. However, at the conclusion of the second type, “it does not follow, in the absence of a statute so providing, that the candidate receiving the next highest number of votes is elected.” Id.

The statutes that led to the court’s ruling, former M.S.A. 208.07 and 208.01, no longer exist, and in any event it is unclear how much weight today’s courts would give this fifty-year-old ruling. However, it does seem that current M.S. 209.07 attempts to make the same distinction the Phillips court made. Like the Philips court, it does not recognize the possibility of a hybrid case that might fit into either category, and for that reason offers little guidance. Therefore, until the legislature amends the language or a court interprets it, it is impossible to say whether a court would install the runner-up in the situation above described.

The above discussion does not apply to races for state senator or state representative, because those houses have the right to determine their own members. M.S.A. Const. Art. 4, s 6. In such a case, the courts may “decide” an election contest, but have no power to enforce their decision. M.S.A. 209.10. Rather, the courts will forward their conclusions of law and fact to the legislature to assist the legislature in making its own decision. This same rule applies to elections to the US legislature. Const. U.S. art. 1, s 5.

20. (A) What are the procedures for counting absentee/early ballots, as opposed to regular ballots?

Teams of two or more election judges begin counting the ballots after the close of polls.

On Election Day, officials will deliver all absentee ballots timely received to the appropriate election judges. M.S. 203B.08. Election judges remove absentee ballots from their separate containers and decide whether to accept or reject them. M.S. 204C.19(1). Teams of two or more election judges evenly divided between the major parties make this decision by majority vote using the rules described in part (C), infra. M.S. 203B.12; 204C.19(1). Counted ballots are entered on a summary sheet with corrections made at the end of all of the counting. M.S. 204C.19(2). A separate record must be kept for the counting of absentee ballots from military voters or those who permanently reside outside the country. M.S. 203B.26.

However, there is a separate procedure: Counties have the option of creating special Absentee Ballot Counting Boards (ABCB’s) under M.S. 203B.13. If counties elect this option, the ABCB’s at any time thirty or fewer days before the election may begin deciding to accept or reject received ballots. Id. However, if a ballot is rejected five or more days before the election, officials must provide the voter with a replacement ballot so they voter can attempt another vote. Besides these features, the ABCB procedure is the same as the traditional procedure.

20. (B) Who, if anyone, can observe the counting of absentee ballots?

The counting of ballots at each precinct shall be public. M.S. 204C.19(1). This includes the counting of absentee ballots.

20. (C) On what grounds may election officials reject an absentee ballot as ineligible for counting?

Ballots will be rejected for at least nine different reasons.

When deciding whether to accept or reject absentee ballots, judges work in teams of two or more. M.S. 203B.12. Absentee votes must be rejected before the ballot is even opened if a majority of election judges agree that any of the following are true:

1. the name and address on the return envelope are not the same as those on the ballot application;
2. the signature on the return envelope is not that of the voter who applied for the ballot. (However, if someone other than the voter applied for the ballot, the signatures from the application and the return envelope need not match– see M.S. 203B.12(2).);
3. the voter certificate has not been completed as the instructions prescribe. (The certificate states that the voter meets all the legal requirements necessary to vote absentee and requires a witness to attest to execution of the ballot — see M.R. 8210.0600.);
4. the voter is not eligible to vote;
5. the voter is not currently registered to vote and has not followed the procedure to register together with the submission of his or her absentee ballot (see question 2 of this article);
6. the voter has already voted in the present election in person or on another absentee ballot.

The statute expressly states that these are the only reasons for an absentee ballot to be rejected and specifically notes that a failure to put the ballot inside its security envelope before mailing it back in its return envelope would not be a sufficient reason to reject the ballot. M.S. 203B.12(2). However, M.R. 8210.2200 says that an absentee ballot that is delivered by an agent and is not sealed or appears to have suffered tampering shall also be rejected. In addition, the Secretary of State’s 2006 Election Judge Guide states that absentee ballots will be rejected when the voter has died (see page 25)(M.S. 203B.25 also states this rule, but it only applies to military and overseas voters.). Finally, the 2006 Election Judge Guide states that absentee ballots will be rejected if there is more than one ballot of any kind contained in the return envelope (see page 25).

When the judges reject a ballot, they must write the reasons for rejection on the ballot. M.R. 8210.2200; 2006 Election Judge Guide, page 25. When they accept a ballot, they must mark this in the polling roster. M.S. 203B.12.

Voters in the military and their spouses and dependents as well as those residing permanently outside the U.S. are authorized by federal law to vote in federal elections and are therefore subject to slightly different criteria to determine validity (see M.S. 203B.24).

20. (D) What notification, if any, must the election officials provide — either to the voters who cast these ballots or to the public — that these absentee ballots were rejected?

No provision requiring the reporting of the percentage of absentee ballots counted could be found. Furthermore, except in two very specific situations, the individual vote receives no notice of whether his or her vote counted.

M.S. 201.022(14) requires the Secretary of State to maintain a statewide voter registration system that keeps track of the number of absentee ballots returned and cast. However, no law was found either requiring or prohibiting the Secretary from sharing this information with the public.

Individual absentee voters are not informed whether their ballot was counted except in two limited situations. The first situation occurs when an agent delivers a ballot on behalf of an absentee voter and the ballot is not sealed or appears to have been subject to tampering. M.R. 8210.2200. In this situation, officials will reject the ballot, record the reason it was rejected, and mail the voter either a notice of non-acceptance or a “replacement ballot notice” (the rule appears to leave the choice up to officials, and does not define what a “replacement ballot notice” is). The voter may reapply for an absentee ballot. M.R. 8210.2200. If voters deliver their own absentee ballots in such a condition, they will be given the opportunity to correct the problems and submit the ballot. Id.

The second situation only occurs where the jurisdiction has elected to use Absentee Ballot Counting Boards (ABCB’s). These Boards may begin counting received absentee ballots as early as thirty days before the election. M.S. 203B.13. Officials must send a voter a replacement absentee ballot and return envelope if the ABCB rejects the voter’s absentee ballot five or more days prior to Election Day.

21. What pre-certification procedures, if any — in other words, separate from post-certification judicial contest of the outcome of the election itself — exist for disputing the exclusion of absentee ballots?

Minnesota law provides two pre-certification procedures for candidates — not voters — to ensure that officials follow the proper procedures in counting absentee ballots.

First, a candidate who believes election judges are committing an “obvious error” in counting or recording votes (including absentee votes) may apply to the local district court for an order compelling the proper procedures. M.S. 204C.39. If the court agrees with the applicant, the court shall issue an order specifying the error and directing the county canvassing board to inspect the ballots and returns, correct the error, and continue counting using the proper procedures.

Second, if candidates for an office unanimously agree in writing that election judges have made an “obvious error” in the counting or recording of votes for that office, they may present the agreement to authorities who will correct any improper procedures. M.S. 204C.38.

No pre-certification procedure was found for combating non-obvious errors.

22. Under what circumstances if any may a voter who has requested an absentee ballot nonetheless cast a regular or provisional ballot at the polling place on Election Day? (Only when the voter has not received the requested absentee ballot, or for another reason, such as the voter wishes to change a vote from one candidate to another?).

As long as the voter has not cast an absentee ballot that was counted, the voter will be allowed to vote.

Minnesota does not treat voters who have requested an absentee ballot any differently than it treats other voters, unless they have cast an absentee ballot that was actually counted. When a voter appears at the polls, election judges will check the poll book to see whether an absentee ballot has already been counted from that voter. M.S. 203B.12. This mark is placed on the poll book when an absentee ballot is cast and counted. M.S. 203B.12; M.R. 8200.9300; 2006 Election Judge Guide, pages 17, 24. If the judge finds this mark next the voter’s name, the voter will not be allowed to vote at the polls. M.S. 203B.12. If the mark does not appear next to the voters’ names, the voters may vote provided they meet the other requirements for voting.

The 2006 Election Judge Guide indicates that voters who attempt to cast an absentee ballot, but whose ballots are rejected, may vote in person (see page 25).

There is a chance that voters could return a completed absentee ballot and then be allowed to cast an in-person vote before officials have a chance to count the absentee ballot and mark this in the poll book. However, there is a procedure to guard against this resulting in the tabulation of two votes. Before counting the absentee ballot, officials will check the poll book to see whether it contains the voter signature required before a voter is allowed to vote in-person. If the signature appears, officials will not count the absentee ballot (see 2006 Election Judge Guide, page 24). M.S. 203B.12.

Intentionally casting more than one vote is a crime in Minnesota. M.S. 204C.14(b).

23. What procedures if any does the state have for preventing double-voting by a voter who has cast both an absentee and an in-person ballot?

Before admitting a person to the polls or counting an absentee ballot, officials check the poll book to ensure the individual has not already cast an in-person or absentee ballot.

When a voter appears at the polls, election judges will check the poll book to see whether an absentee ballot has already been counted from that voter. M.S. 203B.12. This mark is placed on the poll book when an absentee ballot is cast and counted. M.S. 203B.12; M.R. 8200.9300; 2006 Election Judge Guide, pages 17, 24. If the judge finds this mark next the voter’s name, the voter will not be allowed to vote at the polls. M.S. 203B.12. If the mark does not appear next to the voters’ names, the voters may vote provided they meet the other requirements for voting.

There is a chance that voters could return a completed absentee ballot and then be allowed to cast an in-person vote before officials have a chance to count the absentee ballot and mark this in the poll book. However, there is a procedure to guard against this resulting in the tabulation of two votes. Before counting the absentee ballot, officials will check the poll book to see whether the voter has already voted. If the voter has already voted, officials will not count the absentee ballot (see 2006 Election Judge Guide, page 24). M.S. 203B.12.

The last procedure should also prevent more than one absentee ballot cast by a single voter from counting. Where two or more absentee ballots are received from one voter, the most recently dated ballot will be counted. M.S. 203B.24(2).

If more than one ballot of a certain type is included in the same return envelope, none of them will be counted. M.S. 203B.12(4). They will instead be sent back to the municipal clerk or county auditor.

Minnesota has parallel protections against double-voting in jurisdictions that have chosen to use Absentee Ballot Counting Boards. M.S. 203B.13(3a).

Poll Workers/Polling Procedures

24. Who may observe the voting process at polling places on Election Day?

Only officials, challengers, and the news media may observe actual voting, but anyone may observe the counting of ballots after the close of voting.

Who may observe voting

Representatives of the secretary of state’s office, the county auditor’s office, and the municipal or school district clerk’s office may be present at the polling place to observe election procedures. M.S. 204C.06; 2006 Election Judge Guide, page 6. Challengers may observe as well. News media representatives may enter the polling place, but must present identification and press credentials before being admitted.

Teachers and elementary or secondary school students participating in an educational activity relating to voting and elections and authorized by the secretary of state may also be present at the polling place during voting hours so long as the activities do not interfere with the conduct of the election. M.S. 204C.06.

Individuals voting, registering to vote, providing proof of residence to someone registering to vote, or assisting a handicapped or non-English-speaking voter may be present, but may not stay to observe voting after their purposes are accomplished. Id.

Who may observe the counting of votes

Votes will be counted “publicly.” M.S.A. 204C.32; 204C.33. This means anyone may observe closing polls and counting the votes (see 2006 Election Judge Guide at 27).

25. What procedures and protocols, if any, does the state have in place to assure that poll workers and other local election officials follow statewide rules uniformly and do not engage in county-by-county, or even precinct-by-precinct, variation in the administration of rules concerning voter eligibility and the counting of ballots?

To help create uniformity, Minnesota requires training at many levels of election administration, including training for county auditors, municipal clerks, and election judges. In addition, Minnesota has issued uniform rules for how ambiguous ballots should be counted.

Election judge training

To serve as election judges, people must complete a special training course and “demonstrate proficiency through completion of self-administered worksheets, hands-on demonstrations, or other methods approved by the secretary of state” (but graded tests are not allowed). M.S. 204B.25; M.R. 8240.0300; M.R. 8240.1300. The training course must occur not more than sixty days before the primary election and not fewer than three days before the general election. M.R. 8240.1300. To remain qualified, the person must repeat the training every twenty-four months. The course must be at least two hours in length and must familiarize trainees with specimens of the actual forms, ballots and voting machines used in the jurisdiction. M.R. 8240.1600. The administrative code requires the training include:

“A. how to use the training materials to find answers to questions arising in the polling place on election day;

B. preparations on election day before polls open;

C. judges’ duties during voting hours:

(1) election day voter registration;

(2) persons allowed in polling place;

(3) challenge process;

(4) voting process;

(5) spoiled ballots;

(6) assistance to disabled voters; and

(7) absentee ballots;

D. basic election judges’ duties after polls close;

E. new laws, rules, forms, and procedures;

F. major problems at prior elections; and

G. how to follow instructions from the head election judge.”

M.R. 8240.1600; City Election Guide, pages 7-8. Judges appointed after the time for training has ended must attend special emergency training before performing their duties. M.S. 204B.25; M.R. 8240.1500. The Secretary of State has created a 2006 Election Judge Training Kit to assist in training.

Head election judge training

Head election judges must complete special training separate from regular election judge training. M.R. 8240.1200; M.R. 8240.1350. Many of the requirements are identical but head election judge training need only be one hour long, not two. M.R. 8240.1750. Also, the content differs. The head election judge training must contain the following content:

“A. head judges’ duties before election day;

B. head judges’ duties to open the polling place on election day;

C. how to use the voting equipment;

D. how to provide emergency election judge training;

E. how to use the training materials to find answers to questions arising in the polling place on election day;

F. how to help election judges work together in the polling place;

G. head election judges’ duties at the polling place after the polls close; and

H. how to return election materials to the local election official after the ballots have been counted.”

M.R. 8240.1750; City Election Guide, page 8. Head judges may also be required to attend additional training. M.R. 8240.1350.

Emergency election judge training

If an additional judge becomes needed at the polls, the head election judge may train a person to serve as a replacement. M.R. 8240.1900. The training will encompass all duties performed by the replacement judge. If a head election judge becomes needed, the county auditor (or delegate training authority) may provide emergency training for this purpose. M.R. 8240.1950.

Municipal clerk training

Municipal clerks responsible for election administration must receive an initial five hours of training, then four hours of training for each “election cycle.” M.R. 8240.2700. The training will include information on candidate filings, campaign practices, campaign finance requirements, the election calendar, ballot preparation, election judge recruitment and duties, notice requirements, voting systems, mail elections, absentee voting and post-election duties. A municipal clerk who has taken office less than six months before an election may administer the election after completing only two hours of emergency training.

Powerpoint slides concerning 2006 City and Township Training may be found here.

County auditor training

County auditors must complete an initial fifteen hours of training, then two hours of training each calendar year. M.R. 8240.2900. The training should include information on the voter registration system, candidate filings, campaign practices, campaign finance practices, the election calendar, ballot preparation, election judge recruitment and duties, mail elections, absentee voting, the election-night reporting system, post-election duties, and the duties performed by municipal clerks. A county auditor who has taken office less than two months before an election shall complete an “emergency election administration training” program provided by the Secretary of State.

County auditors must also attend an election conference given by the Secretary of State once “every election cycle.” M.R. 8240.1050. To facilitate election judge training, county auditors must also attend special training classes to learn educational principles that apply to adults. M.R. 8240.1100.

Powerpoint slides from the 2006 Auditor’s Training Conference may be found here.

Reference materials made available

The Secretary of State will provide Election Judge Guides and other training materials to be used in training and at the polls. M.R. 8240.2000. Many of those training materials may be found here.

Primary election post-mortem

After each primary election, officials will meet with the head election judge of each precinct, identify any problems experienced, and attempt to resolve them before the general election. M.R. 8240.2500.

Uniformity in the counting of ballots

Minnesota law attempts to eliminate conflicting interpretations of ballot ambiguities by assigning meaning to those ambiguities before the fact. M.S. 204C.22 provides instructions for interpreting fifteen different types of ballot ambiguities, including votes for more than one candidate, stray marks, attempted erasures, and failure to place a mark.

26. (A) What rules exist determining the number of voting machines?

Polling places must have a number of voting stations “in proportion to the number of individuals eligible to vote in the precinct.” M.S. 204B.18. No additional information concerning the number of voting machines could be found.

26. (B) What rules exist to determine the number of poll workers?

At least three election judges must always be present at each precinct. M.S. 204B.22; City Election Guide, page 6. However, in precincts using paper ballots, there must be one election judge for each 150 votes cast in that precinct in the “last similar election.” Id. Furthermore, districts that use electronic voting systems with marking devices must have at least four judges instead of three, but only if 400 or more votes were cast in the last similar election.

26.(C) What rules exist to determine the number of provisional ballots?

Minnesota does not have provisional voting.

26. (D) What additional procedures, if any, are in place to avoid long lines at polling places?

Any person in line at the close of polls (8 p.m.) may vote. M.S. 204C.05; 204C.08; 2006 Election Judge Guide, page 27. Election judges may make and enforce a reasonable time limit on voting to keep the line moving. M.S. 204C.13.

26. (E) What contingency plans are in place if poll workers are unable to get voting machines to work according to their instructions? If poll workers do not report for duty on Election Day?

If an additional election judge becomes necessary, the existing election judges will elect an individual as a replacement. M.S. 204B.23; Election Judge Guide, page 3. Alternatively, the municipal clerk may assign judges who are on “standby” to serve as replacements. If possible, the replacement judge will be someone already trained as an election judge. Otherwise, the head election judge, county auditor or delegate training authority may train the replacement. M.R. 8240.1900; 8240.1950; Election Judge Guide, page 3.

27. What rules are in place to ensure that disabled voters are able to cast a ballot at their polling places on Election Day?

Minnesota law requires officials provide curbside voting, accessible polling places and voting machines, and assistance to disabled voters who request it.

I. Physical assistance in marking ballots

Disabled voters who cannot physically mark a ballot may be assisted by two election judges of different political parties. M.S. 204C.15; 2006 Election Judge Guide, page 8. The judges shall mark the ballots in as secret a manner as possible. If the voter cannot speak English or understand it when it is spoken, the election judges may select two individuals from different political parties to act as interpreters and assist in marking the ballots.

Alternatively, the disabled voter may obtain the assistance of any individual the voter chooses except the voter’s employer or employer’s agent, an agent of the voter’s union, or a candidate for election. The person assisting the voter may enter the voting booth with the voter and mark the ballot as directed. No person who assists another voter shall mark the ballots of more than three voters in one election.

II. Polling place access

Each polling place shall be accessible to the disabled. M.S. 204B.16; 2006 City Election Guide, page 4. The only exception is if “no available place within a precinct is accessible or can be made accessible.” Id. A polling place will be considered accessible if it complies with specifications contained in M.S. 204B.16 concerning doorways, ramps, curb cuts, signage, handrails, parking spaces for persons with disabilities, and other items.

When a disabled voter appears at the polls, two election judges will help the voter enter the polling place and go through the registration and voting lines. M.S. 204C.15. A chair must be provided for disabled voters to use while voting or waiting to vote. M.S. 204B.18.

III. Curbside voting

An individual who is unable to enter a polling place may register and vote without leaving a motor vehicle. M.S. 204C.15; 2006 Election Judge Guide, page 8. Two election judges from different political parties shall assist the voter.

IV. Electronic voting systems

In federal and state elections held after December 31, 2005, and in county, municipal, and state elections held after December 31, 2007, the voting method used in each polling place must include a voting system that is accessible for individuals with disabilities, including non-visual accessibility for the blind and visually impaired. M.S. 206.57; 2006 City Election Guide, page 4. The system must provide to disabled voters the same level of access, participation, privacy and independence that other voters enjoy.

V. Voter registration

A person who, because of handicap, needs assistance in order to register must be assisted by a designated individual. M.S. 201.091. Assistance includes among other things reading the registration form and instructions and filling out the registration form as directed by the eligible voter.

28. In the event that problems arise on Election Day, who determines whether to keep polls open later than originally planned and what rules, if any, guide this determination?

Generally, polls open at 7 a.m. and close at 8 p.m. M.S. 204C.05. Voters standing in line at 8 p.m. will be permitted to vote, but voters arriving after that time will not. However, the Secretary of State may keep polls open later as a result of a court order “or any other order extending the time established by law for closing the polls.” M.S. 204B.47.

In school district elections, the school board may designate the time during which the polling places will remain open. M.S. 205A.09. In all municipal elections, the polling places will remain open from 5:00 p.m. to 8:00 p.m.

29. (A) What rules if any does the state have to require election officials to notify voters of their correct polling places?

Generally, there is no law requiring authorities to notify voters of their polling places. However, when polling places change, every affected household must receive mailed notice at least twenty-five days before the election. M.S. 204B.16; 2006 City Election Guide, page 3.

Minnesota law also includes a provision allowing election judges to change the location of a polling place when it does not meet with accessibility requirements, size requirements, or other legal requirements of Minnesota law. M.S. 204B.17. If this happens, the election judges must appear at the original polling place at the time designated for the opening of polls, announce the change, and post a notice of the new polling place.

29. (B) What remedies exist, if any, in the event that officials fail to comply with such rules?

If a voter appears at the wrong polling place, officials should direct the voter to the correct polling place. 2006 Election Judge Guide, page 10. No other remedy could be found.

Provisional Voting

30. Who cannot cast a regular ballot at the polls, but may cast a provisional ballot?

Minnesota does not have provisional voting.  It has Election Day Registration (see question 2).

31. When will a provisional ballot be counted?

Minnesota does not have provisional voting.  It has Election Day Registration (see question 2).

32. If a new voter registration card is rejected because of incomplete information (signature missing, for example), and a provisional ballot is cast by that voter, in what circumstances (if any) will the state count that provisional ballot as a valid vote?

Minnesota does not have provisional voting.  It has Election Day Registration (see question 2).

33. (A) Who are the state officials that determine whether provisional ballots will count as valid votes? Are these officials elected, appointed, partisan, or non-partisan?

Minnesota does not have provisional voting.  It has Election Day Registration (see question 2).

33. (B) Is this review of provisional ballots conducted in public or behind closed doors?

Minnesota does not have provisional voting.  It has Election Day Registration (see question 2).

33. (C) How soon after Election Day must this review of provisional ballots be complete?

Minnesota does not have provisional voting.  It has Election Day Registration (see question 2).

33. (D) Is it subject to any form of administrative review or appeal?

Minnesota does not have provisional voting.  It has Election Day Registration (see question 2).

34. If a voter is required to cast a provisional ballot because the voter lacks required ID when going to the polls, how much time (if any) is the voter permitted to provide the necessary ID in order for the provisional ballot to count?

Minnesota does not have provisional voting.  It has Election Day Registration (see question 2).

35. If a previously registered voter has moved within the same state, but has not updated the voter’s registration, and if the voter casts a provisional ballot at the correct precinct for the voter’s new address, will the provisional ballot count?

Minnesota does not have provisional voting.  It has Election Day Registration (see question 2).

36.If a voter casts a provisional ballot at a precinct that is not the correct one for the voter’s current address, will the provisional ballot count?

Minnesota does not have provisional voting.  It has Election Day Registration (see question 2).

Recounts/Contests

37. What rules does the state have for protecting the chain of custody of ballots and voting counting equipment, and what remedies exist – including the possibility of ordering a new election – if those chain of custody rules are violated?

Minnesota election law contains numerous chain of custody rules, some of which are described below.  However, with some exceptions, these rules can only be enforced during the actual handling of ballots and voting equipment.  After the fact, most of these rules are construed as “directory” and there is no remedy.

 I.  Pre-election rules

Pre-election chain of custody rules will be provided in a later installment of this document.

II. Post-election rules—at the voting location

 As soon as the polls close, the election judges shall lock the voting systems against further voting.  M.S. 206.86.  They shall compare the number of ballot cards to the number of voters shown on the election register to whether there are excess ballots.  If there is an excess, the judges seal the ballots and transport them to the county auditor or municipal clerk.  This official will set aside any ballots that were not properly initialed by two elections judges.  M.S.A. 204C.20.  If there is still an excess of ballots, the official will randomly withdraw a number of ballots from the box to remove any excess.  The withdrawn ballots are not counted but stored by the county auditor or clerk.  After this process is completed, election judges will record the total number of voters who voted in the precinct and the total number of write-in votes.  M.S. 206.86.  The judges shall place all voted ballot cards, defective ballots, and damaged ballots in a special container for transport to the counting center.  The container must be sealed and delivered immediately to the counting center by two judges who are not of the same major political party.

The Secretary of State’s interpretation of these rules can be found in the 2006 Election Judge Guide.

III.  Post-election rules– at the counting center

 Proceedings at the counting center are open to the public.  M.S. 206.86.  Only persons employed and authorized for the purpose may touch any ballot card, ballot container, or statement of absentee ballot results.

Election judges will examine ballots for physical defects and, if necessary, prepare replacements in the presence of two judges of different political parties.  M.S. 206.86.  Duplicate cards must be clearly marked to indicate they are duplicates.

After creating any duplicates, officials run the ballots and duplicate ballots through the automatic tabulating equipment.  Id.  Counting center officials shall prepare the final return, which consists of the final tabulation report produced by the automatic tabulating equipment, the returns of any write-in or absentee votes, and the precinct summary statements.

The precinct summary statement consists of the following: the number of votes on each candidate and issue; the number of overvotes and undervotes; the number of totally blank ballots, totally defective ballots, spoiled ballots, and unused ballots; the number of individuals who voted at that precinct; the number of voters registered in that precinct; a certification that the proper counting procedures were followed and that all figures are accurate.  M.S.A. 204C.24.  Three copies of the summary statements are placed in sealed envelopes.  As with the seals for ballot envelopes, election judges sign these seals.  The summary statements and other materials are then forwarded to the county auditor or local clerk.  M.S.A. 204C.27.

After preparing the final returns, machines must “be programmed to provide a complete recapitulation of all ballots processed.”  Id.

IV.  Post-election rules—at the County Auditor’s or Clerk’s office

The county auditor or municipal clerk who receives the election materials from the counting center must make a record of all materials delivered, the time of delivery, and the names of the individuals who made delivery.  M.S.A. 204C.28.  The record must be filed and all envelopes containing ballots kept in a safe and secure place. If the envelopes have to be opened for any reason (for instance, a recount), the envelopes must be resealed and the seals signed.  Until the time for elections contests has expired or until any elections contests have concluded, a record must be kept that shows the names of any individuals who accessed the materials.

One copy of the summary statements received by the county auditor or clerk must be forwarded to the Secretary of State.  M.S.A. 204C.30.

The Secretary of State’s instructions to city and township clerks on these matters may be found here (p. 28) and here (p.30).  No instructions specific to county auditors could be found.

V.  Remedies for violation of chain of custody rules

 Before the fact

If officials are about to commit an “obvious” violation of the chain of custody rules or are currently committing an “obvious” violation of those rules, an aggrieved party may obtain an injunction to see that they are followed.  M.S.A. 204C.39.  The local canvassing board will then inspect the ballots in front of all the candidates and correct any error.

In addition to this statutory procedure, aggrieved parties should generally be able to obtain injunctive relief to prevent or cease even non-obvious violations of these rules.  This is because, before and during the course of an election, election procedures are “mandatory and their observance may be insisted upon and enforced.”  Green v. Independent Consol. School Dist. No. 1 of Lyon County, 89 N.W.2d 12, 16 (Minn., 1958); see also Hahn v. Graham, 225 N.W.2d 385, 386 (Minn., 1975).  After the election, however, procedural rules are construed as merely directory– intended more to give guidance to elections officials rather than to create a remedy.

After the fact

However, after an election, things become more difficult.  The statutory procedure remains in place for “obvious” errors, but the Supreme Court of Minnesota has suggested this procedure is limited to correct mistakes that are “apparent from the face of the returns.”  Application of Andersen, 119 N.W.2d 1, 8 (Minn., 1962).  The Supreme Court has inferred that the purpose of this statute is to avoid election contests, where possible.  Id. at 5.

However, where the error was non-obvious, a recount or election contest is the only remedy.  Furthermore, an election contest is likely to be unsuccessful because, unlike before or during the chain of custody violation, after the violation the chain of custody rules are construed as “directory” and violations of them will generally be overlooked in the absence of fraud, bad faith, a constitutional violation or a changed election result.  Green v. Independent Consol. School Dist. No. 1 of Lyon County, 89 N.W.2d 12, 17 (Minn., 1958); Hahn v. Graham, 225 N.W.2d 385, 386 (Minn., 1975).

There are only two exceptions.  First, after an election, procedural rules will be construed as mandatory rather than directory where “the legislature has clearly and unequivocally expressed an intent that a specific statutory provision… [where not followed] shall have the drastic consequence of invalidity.”  Matter of Contest of School Dist. Election Held on May 17, 1988 (Minn.App., 1988).  Second, in an egregious case where failure to follow directory chain of custody rules “impeach[es] the integrity of the vote,” a court may invalidate the entire election results for the affected precinct.  Ganske v. Independent School Dist. No. 84, 136 N.W.2d 405, 408 (Minn., 1965); In re Contest of Election of Vetsch, 71 N.W.2d 652, 659 (Minn., 1955).

For more information about election contests, see questions 43-47.

38. Are losing candidates and their supporters permitted to contest the results of an election on the ground that ineligible ballots were included in certified total, even if it is unknown for which candidate those ineligible ballots were cast?

With respect to absentee ballots, definitely not, and with respect to regular ballots, probably not.

The Supreme Court of Minnesota has held that “absentee ballot may not be challenged at any time after the ballot has been deposited in the ballot box”—including in an election contest.  Bell v. Gannaway, 227 N.W.2d 797, 805 (Minn., 1975).  The Court did, however, create an exception to this rule for “facially invalid ballots,” because “where ballots are facially valid they are capable of segregation and recount.”  Id.

That holding was based on an old statute that no longer exists.  However, the state legislature has since adopted a statute with very similar wording that is even broader—it applies to both absentee and regular ballots.  M.S.A. 204C.13.  While no court has yet addressed whether the Bell holding would extend to regular ballots, the logic of Bell seems to compel that result.

It is important to note that, subject to the right against self-incrimination, voters who have voted illegally do not have any right to keep their votes secret.  Ganske v. Independent School Dist. No. 84, 136 N.W.2d 405 (Minn., 1965).  Therefore, if an election contest were allowed, the court might be able to compel illegal voters to testify as to how they voted.

39. How close must the result of a statewide election be in order for an automatic recount to occur?

In any election for a statewide federal office, state constitutional office, statewide judicial office, congressional office, state legislative office, or district judicial office, the canvassing board must automatically recount the votes if the difference between the vote totals for one candidate and any other candidate 1) is less than one-half percent of the total votes cast for the office or 2) is ten votes or less and the total number of votes cast is 400 or less.  M.S. 204C.35.

A losing candidate may waive the recount by filing written notice with the canvassing board.  M.S. 204C.35(1)(e).

In an election for county, municipal or school district office or on a local ballot question, recounts are not triggered automatically, but only by request.

40. (A) In what circumstances are losing candidates or their supporters entitled to request a (non-automatic) recount?

Candidates (but not their supporters) may obtain a recount simply by filing an appropriate petition.

For federal, state, and judicial races

In federal, state, and judicial races, any candidate may obtain a recount at the candidate’s own expense by filing a recount petition, regardless of how close the margin of victory was.  M.S.A. 204C.35.  The deadline for filing the petition is the same deadline that applies to filing an election contest lawsuit—generally within seven days after the canvass is completed (five days in the case of a primary).  M.S.A. 204C.35; 209.021.  However, where the petition is based on “deliberate, serious, and material violation of the election law which was discovered from the statements of receipts and disbursements required to be filed by the candidates and committees,” the deadlines are slightly longer.  Id.

Neither the statute nor any of the cases interpreting it prescribe any particular form for the recount request.

For county, school district, and municipal elections

Regardless of how close the margin of victory was, candidates for the above offices (but not their supporters) may obtain recounts by filing a recount petition with the county auditor, municipal clerk or school district clerk, as appropriate.  M.S.A. 204C.36.  The deadlines for filing the petition are the same as they are in federal, state, and judicial races.

Neither the statute nor any of the cases interpreting in prescribe any particular form for the recount request.

For the Secretary of State’s interpretation of these laws, see the 2006 Recount Guide.

40. (B) How is that done? What is the deadline for doing so?

See 40(A).

40. (C) When should the recount be completed?

There is no firm deadline.  The recount statute that applies to automatic recounts of federal, state and judicial races says that those recounts should be completed “as soon as possible,” but does not provide any further information.  M.S.A. 204C.35.

40. (D) Who pays for the recount?

In any race where the vote difference is less than one-half percent of the total or less than or equal to ten out of 400 or fewer total votes cast, the office of the Secretary of State or the appropriate political subdivision shall pay the recount expense.  M.S.A. 204C.35; 204C.36.  In any race where the vote difference is greater than those numbers, the recount expense must be paid by the candidate or voter requesting the recount.

41. In the event of a recount of votes cast on a DRE machine, is the record to be recounted electronic or paper?

Minnesota does not use DRE machines, only optical scan machines.

42. Who are the state officials who conduct recounts?

It depends on the type of election.

Recounts for county, school district and municipal elections

County auditors receive requests for recounts and perform recounts in races for county office.  M.S.A. 204C.36.  Municipal clerks do the same for municipal offices, and school district clerks for school district offices.

County auditors are elected in each county.  M.S.A. 384.01.  Auditors are elected to four-year terms.  M.S.A. 382.01.

Municipal clerks become clerks in accordance with local law.  There are two types of municipalities in Minnesota:  Towns and cities (cities are generally larger and must meet certain requirements to become classified as cities—see M.S.A. 368.01 versus 410.01).  Town clerks are elected to either two- or four-year terms or, alternatively, they are appointed by the town board.  M.S.A. 367.03.  By default, city clerks are elected.  M.S.A. 412.541.  However, cities may instead choose to adopt a system in which the clerk is appointed by the city council.  M.S.A. 412.581.

Recounts for federal, state, and judicial races

Recounts for the above offices are conducted by either the county or the state Board of Canvassers.  M.S.A. 204C.35.  The question depends on which Board is responsible for announcing the election results.  For county and state offices voted for only within the county, the county Board declares the results and subsequently conducts the recount, if any.  M.S.A. 204C.33.  The state Board declares the results and conducts recounts for all other federal, state, and judicial races.

43. In an election contest lawsuit, what is the contestant’s burden of proof?

The burden of proof varies depending on whether the action is based on procedural irregularities or on violations of Minnesota’s Fair Campaign Practices Act or Campaign Financial Reports Act.

Election contest based on procedural irregularities

Generally speaking, an election contestant protesting officials’ failure to follow the proper election procedures must prove by a preponderance of the evidence that “the irregularity affected the outcome or was the product of fraud or bad faith.”  Hahn v. Graham, 225 N.W.2d 385, 386 (Minn., 1975).

There are at least two exceptions.  First, after an election, officials’ failure to follow the proper procedures may invalidate the result of an election where “the legislature has clearly and unequivocally expressed an intent that a specific statutory provision… [where not followed] shall have the drastic consequence of invalidity.”  Matter of Contest of School Dist. Election Held on May 17, 1988 (Minn.App., 1988).  Second, in an egregious case where failure to follow directory chain of custody rules “impeach[es] the integrity of the vote,” a court may invalidate the entire election results for the affected precinct.  Ganske v. Independent School Dist. No. 84, 136 N.W.2d 405, 408 (Minn., 1965); In re Contest of Election of Vetsch, 71 N.W.2d 652, 659 (Minn., 1955).

Election contest based on violation of Fair Campaign Practices Act

However, when an election contest is based on violation of the Minnesota Fair Campaign Practices Act or Campaign Financial Reports Act, it is not necessary to show that the violation changed the outcome of the election.  Matter of Contest of Election in DFL Primary Election Held on Tuesday, September 13, 1983, 344 N.W.2d 826, 831 (Minn., 1984).  Rather, it is sufficient to show that the contestee committed a violation, that the violation was “serious, deliberate, and material,” and that, considering the circumstances, it is not unjust for the contestee to forfeit the office.  M.S.A. 211B.17; 211A.09; Schmitt v. McLaughlin, 275 N.W.2d 587, 591 (Minn., 1979).  The Schmitt court explained that “deliberate” means “intended to affect the voting of the election” and “serious” means non-trivial.

The FCPA prohibits various “unfair” campaign practices, such as soliciting near polling places, transporting voters to polling places, bribery, etc.  See M.S.A. 211B.01-211B.21.  The Campaign Financial Reports Act contains various requirements for campaign finance disclosure.  M.S.A. 211A.01-211A.14.

44. In an election contest lawsuit, will the court permit discovery, including depositions?

Yes.  By filing a petition with the trial court, a party may cause officials to recanvass the ballots under that party’s observation.  M.S.A. 209.06.  No information regarding depositions could be found, but they are presumably available because “[i]nsofar as practicable, the Rules of Civil Procedure govern election contests….  Where there is no law, the general rules applicable to trial of civil cases should be followed.”  M.S. 209.06; Derus v. Higgins, 555 N.W.2d 515, 517 (Minn., 1996).  The 1913 version of Minnesota’s election contest statute expressly allowed depositions, but has long since been repealed.  State v. Nelson, 169 N.W. 788, 789 (Minn., 1919).

45. In an election contest lawsuit, how much evidence of wrongdoing must a contestant have to survive a motion to dismiss?

None.

In an election contest, a motion to dismiss for failure to state a claim is treated in the same way it would be in an ordinary civil lawsuit.  Derus v. Higgins, 555 N.W.2d 515, 517 (Minn., 1996).  This means that no evidence is required to withstand the motion, only appropriate allegations.  Witzman v. Lehrman, Lehrman & Flom, 601 N.W.2d 179, 185 (Minn., 1999).  To be sufficient, the election contest petition must allege one of the grounds contained in Minnesota’s election contest statute, M.S.A. 209.02.  In other words, the contest must be brought “over an irregularity in the conduct of an election or canvass of votes, over the question of who received the largest number of votes legally cast, over the number of votes legally cast in favor of or against a question, or on the grounds of deliberate, serious, and material violations of the Minnesota election law.”

Not only must the contestant allege these grounds, but he or she must allege them with particularity; petitions that merely state the contestant “has reason to believe that possible errors could have occurred” will be dismissed.  M.S.A. 209.021; Greenly v. Independent School Dist. No. 316, 395 N.W.2d 86, 90 (Minn.App. 1986), citing Christenson v. Allen, 119 N.W.2d 35, 37 (Minn., 1963).  The only exception is where the election contest “questions only which party received the highest number of votes,” in which case the contestant “need not allege specific irregularities in the conduct of the election or the canvass of the votes.”  Id., citing Homen v. Miller, 206 N.W.2d 916, 922 (Minn., 1973).

46. In an election contest lawsuit, what specific deadlines and timetable does state law provide for a trial?

The timetable for conducting election contests depends on the type of office at issue.

In a contest for an office other than state legislative office

An election contest must be filed within seven days after the canvass is completed (five days in the case of a primary).  M.S.A. 209.021.  However, there are two exceptions.  First, “if a contest is based upon a deliberate, serious, and material violation of the election laws which was discovered from the statements of receipts and disbursements required to be filed by the candidates and committees,” the complaint need not be filed until ten days after the filing of the statements (five days for a primary).  Second, where a recount petition is filed, the clock for filing an election contest does not begin to tick until the results of the recount have been certified by the appropriate body.  M.S.A. 204C.35; 204C.36.

The answer must be filed within seven days after receiving notice, except for in primary elections.  M.S.A. 209.03.  In primaries, the answer must be made on the court’s schedule, but no later than five days after notice.  Trial must occur “as soon as practicable within 20 days after the filing of the notice of contest.”  M.S.A. 209.065.

Any notice of appeal must be filed within ten days of the trial court’s judgment (five days if the election is a primary).  M.S.A. 209.09.  The trial court record must be filed in the appeals court fifteen days after the notice of appeal.  The appellate hearing may occur at any time, provided there is adequate notice.

In a contest for state legislative office

However, in an election contest over a state legislative office, special rules apply.  After the contest is filed, the trial court clerk forwards a copy of the complaint to the Chief Justice of the state Supreme Court (the clerk also forwards the answer within three days after it is filed). M.S.A. 209.10.  Within five days of receiving the complaint copy, the Chief Justice shall forward a list of state trial court judges from which the parties must choose their judge by striking off names until only one remains.  The judge must be chosen this way within two days of receiving the list of names.  Then, within fifteen days after the complaint is filed, the chosen judge shall begin the trial.  The decision may be appealed directly to the state Supreme Court no later than ten days (five days in the case of a primary).   The trial court record must be certified to the Supreme Court within fifteen days after service of the notice of appeal.  A copy of the Supreme Court’s decision, if any, is then forwarded to the appropriate legislative body.  After that point, the legislative body is free to conduct further proceedings on its own schedule and determine the winner of its choice.

47. Are the judges in the state themselves elected or appointed?

Minnesota trial court judges, appellate judges, and Supreme Court justices are all elected to six-year terms.  M.S.A. Const. Art. 6, s 7.

Other

48. What specific problems arose in connection with the voting process in this state during 2004? What remedies, if any, did the state adopt in response to those problems?

News accounts indicate that Minnesota experienced no major problems in the 2004 election.  Kiffmeyer shrugs off critics, Duluth News Tribune, November 14, 2004.  However, it did experience some minor glitches as follows.

However, the state’s electronic voter registration database did fail to reflect the registrations of some voters, forcing them to use Minnesota’s special Election Day Registration procedure.  Some Minnesota voters upset they weren’t registered, Duluth News Tribune, November 13, 2004.  The Secretary of State hypothesized that these voters might have been accidentally removed from the database during a purge of the registrations of dead voters, while others speculated the confusion was caused by the state’s decision to switch to a modernized voter registration database system just months before the election.  Another theory is that the voter registration forms provided at driver’s license bureaus were designed poorly in a way that made it difficult for voters to see how to fill them out completely.  Election Day fears fizzle, St. Paul Pioneer Press, November 13, 2004.

The Secretary of State also received complaints about activists from MoveOn.org who allegedly were campaigning too close to polling places.  Election Day fears fizzle, St. Paul Pioneer Press, November 13, 2004.  Republicans tried and failed to get an injunction against the group.

In the city of Duluth, Republicans alleged that some people were “vouching” for the identity of individuals they did not know in order to allow those individuals to use Election Day Registration despite not having ID.  Charges prove Duluth’s role as battleground, Duluth News Tribune, November 4, 2004.  In turn, Democrats blamed Republicans for stories of voters being wrongly turned away from polls for lack of identification.  Voters encounter challenges, intimidation at Duluth polls, Duluth News Tribune, November 3, 2004.  However, the next day the allegations were fewer and the issues seem to have subsided.

49. What pending litigation exists in the state concerning the voting process?

As of January 8, 2007, none.

50. What voting machines are used in this particular state? What security measures are in place to prevent tampering with the voting machines? Insofar as DRE machines are used, is there a requirement that they produce a voter-verifiable paper trail?

Pursuant to Secretary of State regulations, Minnesota uses optical scan voting machines exclusively.  A county-by-county breakdown of voting machines in the state may be found on the Secretary’s website.  Because optical scan ballots are preserved, there is no need for VVPATs.

Machines must be arranged so they are in full view and are accessible to only one voter at a time.  M.S.A. 206.64.  They cannot be connected to any outside information network and may not use wireless connections.  M.S.A. 206.845.  Information may be transmitted out of machines only by disk, tape, or other physical means, not through electronic transmission.  The only exception occurs after voting is complete and results are printed out of the precinct’s machines; at that point, the machines may be connected to the internet to transmit the results to a central reporting location.

Before machines may be put into use, they must be tested and certified by the Secretary of State.  M.S.A. 206.57.  In addition, they must be certified by an independent testing authority and conform to the current standards of the Federal Elections Commission or its successor, the Election Assistance Commission.

Within fourteen days of Election Day, officials must have all voting machines tested to make sure they are operating properly.  M.S.A. 206.83; M.R. 8220.1550.  Immediately after certifying the results of the public accuracy test, the election jurisdiction must secure all computer programs, software utilized, test decks, certified computer results of the test, and the predetermined results in a container which must be sealed in a manner so that the container cannot be opened without breaking the seal.  M.R. 8220.1850.  After completion of the public accuracy test, every change in a computer program used for vote tallying and under control of the election jurisdiction must be authorized, approved, and documented by the responsible authority of the election jurisdiction.  M.R. 8220.2850

Officials must also perform a random manual audit of voting machines after each federal election to identify whether the machines are working properly.  M.S.A. 206.89.  If the machines fail the standards set forth by the statute, it can trigger a full manual recount and decertification of the machines until they are brought up to standards.  Decertification may occur only after notice to the vendor and opportunity for a hearing.  M.R. 8220.0650.

Voting equipment software must be reexamined and recertified every four years.  M.R. 8220.0700.