As you know, on January 25, 2022, Minnesota Voters Alliance (MVA) and three Ramsey County absentee ballot board members, represented by the Upper Midwest Law Center, filed a lawsuit against the Secretary of State because the Secretary of State has an administrative rule (Minnesota Rule 8210.2450) that violates Minnesota’s absentee ballot board law (Minnesota Statutes 203B.121).
Rule 8210.2450 makes it impossible for election judges to comply with their legal duties and properly compare signatures between absentee ballot applications and the return envelopes. The Secretary’s rule writes the signature matching safeguard out of the law. But rules aren’t allowed to override laws passed by our Legislature.
Making sure an absentee ballot is really cast by the person who requested it is what is at issue. In addition, ballot board members cannot be forced to accept ballots which appear to them to be fraudulent. These are important principles that we are fighting for in this case.
In a bad decision, the Minnesota Court of Appeals ruled against the MVA. We strongly disagree with the Court of Appeals, as we explain below. But, in better news, our appeal to the Minnesota Supreme Court has been granted review! The Court only grants review in about 10% of cases, so this is a very good thing. We are awaiting a hearing date.
Click here to view our appeal brief to the Supreme Court.
Back to the Court of Appeals decision, here’s why it was wrong. The court ruled that election judges can somehow comply with both the Rule and the Law at the same time. So, let’s look at what the Law says (in relevant part):
(b) The members of the ballot board shall mark the signature envelope "Accepted" and initial or sign the signature envelope below the word "Accepted" if a majority of the members of the ballot board examining the envelope are satisfied that:
(2) the voter signed the certification on the envelope;
(3) the voter's Minnesota driver's license, state identification number, or the last four digits of the voter's Social Security number are the same as a number on the voter's absentee ballot application or voter record. If the number does not match, the election judges must compare the signature provided by the applicant to determine whether the ballots were returned by the same person to whom they were transmitted;
And here is what the Rule says (in relevant part):
As to section (b)(2):
... A ballot must be rejected under this subpart on the basis of the signature if the name signed is clearly a different name than the name of the voter as printed on the signature envelope. This is the only circumstance under which a ballot may be rejected on the basis of signature under this subpart.
As to section b(3):
Use of, or lack of, full names, nicknames, abbreviations, or initials within either signature are not a reason for rejection. A signature is considered the voter's even if a voter uses a signature mark on either or both documents, or if a voter has another individual or different individuals sign the voter's name in their presence on either or both the application and the return envelope in accordance with Minnesota Statutes, section 645.44, subdivision 14.
In short, the Law authorizes election judges to exercise their judgment as to whether the signature on the envelope containing the voter’s filled-out ballot is that of the person who filed a request that they be sent a blank absentee ballot. The Rule, however, eliminates any judgment of the election judge by requiring that the election judge must accept a ballot if the “name” matches, even if she believes that the signatures DO NOT match.
Consider this hypothetical example:
Since the “name” is the same (same letters, spelling), the Rule instructs the election judge to accept the ballot submission. The use of and meaning of “signature” in the statute has been erased by the Rule.
The lower court opined that the Rule is only providing "guidelines" to the election judges. What the Rule is really doing is shutting out the legislature from controlling how signature matching is done and substituting the SOS’s own lawmaking.
The Secretary of state has no authority to use Rulemaking to create new Law. The Secretary of State cannot issue a new Law by disguising it as guidelines in a Rule.
When the rule was established in 2010, just over 23,000 absentee ballots were cast. In 2020, that number jumped to over 1.9 million ballots, and people started paying attention to the absentee ballot rules.
Previously, on March 16, 2022, the Minnesota Supreme Court in Minnesota Voters Alliance v. County of Ramsey held that only party-balanced election judges may conduct signature matches and accept or reject absentee ballots where there is an identification number mismatch between the ballot application and the signature envelope. This category alone resulted in over 7,000 rejections in the 2020 primary and general elections, according to the Secretary of State’s statistics.
Absent the unlawful signature matching instructions of the Secretary’s Rule 8210.2450 for election judges, that number would likely be far higher because election judges would not be forced to accept absentee ballots that appear to be fraudulent. Sadly, under this current rule, it is just one more way to cheat in Minnesota elections. This is why we need your help—to stand up for common-sense, bipartisan election integrity safeguards.
We are deeply grateful to our friends and members who provide support for the critical work of the MVA. Your generosity and continuing commitment are vital to everything we do and all that we accomplish!
Please consider a generous year-end 'tax deductible" donation today! Your check may be made payable to the “Minnesota Voters Alliance” and sent to the address below, or, you can also contribute online at MNVoters.org.
Andrew E. Cilek
Minnesota Voters Alliance
P. O. Box 4602
St. Paul, MN 55104