Maybe you already know who you want to vote for in 2020. But given concerns about COVID-19, how will you vote? In person at the polls on Election Day? Or will you vote by absentee ballot?
If you vote by absentee ballot, an increasingly popular choice even before COVID-19, you can drop your ballot off in person, mail it or give it to someone to deliver.
While COVID-19 is driving an increase in absentee voting, you should know that the laws governing absentee ballots are very much in play — and not in a good way. Some laws are not being followed, and others are being revised by judges, without the benefit of the legislative process.
First, Minnesota’s “ballot board” laws are not being followed by some election officials in the state, nor are they being enforced by Secretary of State Steve Simon.
Following the long and messy recount in 2008 between senatorial candidates Al Franken and Norm Coleman, when 12,000 absentee ballots were rejected, Minnesota lawmakers voted almost unanimously to require that absentee ballots be accepted or rejected by ballot boards made up of election judges from “the major political parties.”
The idea is that having a judge from each major party helps keep the count fair and honest.
In 2013, the Legislature expressly eliminated a provision that had allowed city or county staff to serve on absentee ballot boards. Employees who earn their living from the city or county and have connections to elected officials were recognized as being susceptible to political bias, so the Legislature decided it was better to use election judges from competing parties.
Ballot boards were designed to eliminate delay, drama and uncertainty, and to ensure fairness so citizens have confidence in the results, especially when elections are very close.
The Minnesota Voters Alliance, which seeks to increase voter participation by protecting the integrity of elections, discovered that ballot board laws are not uniformly followed. In some cities and counties, ballot boards are not even being appointed, let alone staffed with election judges from the major parties.
MVA filed suit against Minneapolis, Duluth, and Olmsted and Ramsey counties, arguing that Simon has implemented a system contrary to the intent of the Legislature, one in which city or county staff accept and reject ballots behind closed doors without any citizen election judge oversight or party balance.
The ballot board case will be heard in Ramsey County Aug. 26.
The second issue is that laws governing how absentee ballots are signed, delivered and counted are also undergoing fundamental revisions. These changes are not, as you would expect, being made by the Legislature. Instead they are being revised through litigation, with the help of Simon.
Several groups of voters brought lawsuits seeking changes to absentee voter laws, changes sought last session by DFL House leadership and Simon. They failed to gain support in the Senate.
In one case, elderly and disabled voters, concerned about COVID-19, wanted witness requirements waived and more time to mail their ballots. A consent decree, agreed to by Secretary Simon, waiving the laws for all voters in 2020, was approved by a district judge and will not be appealed.
This means that absentee ballots no longer require the voter’s signature to be witnessed, and ballots delivered within seven days of the election will be counted, as long as they are postmarked by Election Day, extending the finalization of election results for over a week.
In another case, voters not proficient in English challenged voter assistance laws. A judge said laws limiting the number of voters that a person may assist in a polling place and the number of absentee ballots that someone can return on behalf of voters are unconstitutional. This means that one person can now influence the vote of an unlimited number of people, and that Minnesota now permits unlimited “ballot harvesting.”
The Minnesota Supreme Court will hear an appeal Sept. 3.
One can certainly sympathize with vulnerable voters seeking accommodations because of COVID, but disabilities were already taken into account by the Legislature (curbside voting, 46 days to vote, etc.). The law was crafted to conclude vote counting on Election Day, and to curb voter fraud and intimidation of vulnerable voters by bad actors. The court substituted its judgment for that of the Legislature and allowed Simon to achieve changes in the law without the Legislature.
If these revisions to Minnesota’s election laws end up being upheld by the high court, it will be even more important that the MVA lawsuit succeeds in enforcing ballot board laws requiring election judges from the major parties to decide whether to accept or reject absentee ballots.
Kim Crockett is a Minnesota attorney and adviser to Minnesota Voters Alliance.