Minnesota Lawyer
Election cybersecurity, once described as one of the lightest legislative lifts of 2019, has devolved into a stubborn controversy that some Democrats worry foreshadows turbulence ahead as this year’s Capitol session enters the home stretch.
It boils down to a simple unanswered question: How much of $6.6 million in Help America Vote Act funds, which the federal government granted Minnesota last year, should go to Secretary of State Steve Simon to shore up the state’s election cyber-defenses?
The two chambers have quite different answers. On Feb. 21, the DFL-led House voted 105-23 to approve House File 14, with many Republicans joining the Democrats. That bill appropriates the full $6.6 million.
On Feb. 28, the Senate voted 35-32 along party lines to give Simon access to only $1.5 million of the grant — the same amount included in last year’s vetoed Omnibus Prime supplemental finance bill. The discrepancy sent the HF14 to a joint House-Senate conference committee to iron out the differences.
On Tuesday, for the second time since March 21, Senate Republicans — led by conference committee co-chair Sen. Mary Kiffmeyer, R-Big Lake — skipped a HAVA hearing.
The meeting went ahead anyway. Democrats — including three Senate DFLers who aren’t conferees — heard testimony from Simon and former Cook County, Ill., election director Noah Praetz. But with no Senate Republicans on hand to continue negotiations or vote on a compromise, the issue remains unresolved.
“I just hope this isn’t an indication of what the future holds,” said Rep. Ray Dehn, DFL-Minneapolis, during Tuesday’s hearing. “Because if it is I would say cancel your summer plans, folks.”
A few hours earlier Tuesday, Gov. Tim Walz told reporters what it would signal to him if GOP Senate conferees skipped that day’s conference committee — as they later did.
“I think it could be telling,” Walz said. “That could make for a very hard four weeks. Because it’s going to show you that obstruction is the name of the game, compromise is not in the vocabulary.”
Simon said he does not understand why Republicans refuse either to release the funds or negotiate a compromise.
On March 7, in the only previous conference committee hearing that Senate GOP members attended, Republicans rejected two DFL offers after insisting they could not budge from the $1.5 million figure passed in their bill.
Simon says that amount is inadequate to protect the state’s elections system from future cyber-intrusions as the 2020 elections approach. Minnesota is said to be the last state not to have accessed and begun spending the federal HAVA funds.
Simon, who says that Russian hackers tried unsuccessfully to penetrate Minnesota’s voting systems in 2016, said the state could be particularly vulnerable in 2020 if the money is withheld. Foreign actors would know Minnesota stands alone as the only state not to invest federal dollars to shore up its defenses, he said.
The situation has Simon perplexed.
“We literally don’t have even an explanation — not even a cover story — for why the delay,” Simon told conferees Tuesday. “That’s the most disappointing thing.”
Explanation
Kiffmeyer’s absence from the conference committee can be explained. Her omnibus state government finance package, Senate File 2227, was heard Tuesday by the Senate Finance committee. That hearing was interrupted by a Senate floor session and resumed around the same time the HF14 conference committee convened at 1:30 p.m.
Kiffmeyer blamed Democrats for the scheduling conflict.
“The Senate was never included in the scheduling discussions on this conference committee today and we informed the House and Secretary’s office we could not be there should they decide to host it,” Kiffmeyer said in press release sent out later Tuesday. “They decided to meet anyway.”
Rep. Michael Nelson (second from left) convenes a conference committee intended to determine how much of a $6.6 million federal cybersecurity grant should be released to Secretary of State Steve Simon. The empty chairs would normally be occupied by Senate conferees, but they skipped the hearing. (Staff photo: Kevin Featherly)
Rep. Michael Nelson, DFL-Brooklyn Park, is chair of both the House State Government Finance committee and co-chair with Kiffmeyer of the House File 14 conference committee. Later in the session, they likely will co-chair another conference committee, the one that decides total funding for state government agencies.
In an interview, Nelson said he posted Tuesday’s hearing on the legislative schedule two weeks ago but never heard back from Republicans. He said he went ahead with it because it was the only date that Praetz, a nationally recognized elections security expert, could make the trip to Minnesota.
Nelson said Kiffmeyer’s explanation for skipping the hearing might carry more weight had she not already led a previous boycott of the conference.
He added that her reluctance to meet predates Tuesday’s hearing. Senate Majority Leader Paul Gazelka, R-Nisswa, at one point reached out through House leadership to express interest in setting up a meeting between himself and Kiffmeyer to discuss the HAVA impasse, Nelson said. But that never happened.
“All communication stopped, she stopped returning our phone calls,” Nelson said. “There’s been no response back to us.”
Added Nelson, “I don’t know what it is she wants.”
Suspicion
Democrats do have their suspicions, however.
They say Kiffmeyer is holding back the HAVA money hoping to exchange it in late-session negotiations for an agreement to introduce provisional balloting to Minnesota. Kiffmeyer attempted to do that in 2017, with backing from Andy Cilek of the Minnesota Voters Alliance, who testified for the bill she had going at that time.
Sen. Ann Rest, DFL-New Hope, said that there are “pretty strong rumors” afloat suggesting that, to GOP leaders, a deal for provisional balloting is worth horse-trading about $5 million in HAVA funds. However, no GOP caucus leaders have made any such statements publicly.
But the Minnesota Voters Alliance has. In January, it sent out a written “legislative alert” to its members urging them to pressure GOP leaders — Kiffmeyer; her State Government Finance committee co-chair Sen. Mark Koran, R-North Branch; Gazelka; and Deputy Senate Major Leader Michelle Benson, R-Ham Lake — to demand that at least half of the HAVA money be used to implement provisional balloting.
Provisional balloting has traditionally been an option for states that, unlike Minnesota, have no same-day voter registration. For example, in those states when someone shows up at the polling booth and finds their name somehow removed from voter rolls, he or she can cast a provisional ballot. That ballot then gets set aside until election officials have time to investigate the voter’s eligibility. If the vote’s valid, it counts.
But what critics contend Kiffmeyer pushed for in 2017 — and what the Voters Alliance seems to seek in its January letter — is different.
“The [2019] bill must be amended to spend at least half of the money on implementing a limited provisional ballot system that will prevent ineligible voting by those who have failed eligibility tests,” the Voters Alliance legislative alert states.
As described in 2017, provisional balloting in Minnesota would allow a witness at the polling place to challenge a voter’s eligibility if they suspect it’s in question. On the strength of that challenge, the voter would be handed a provisional ballot to fill out.
Kiffmeyer denied at the time that her system actually worked like that, but others like Simon and the ACLU Minnesota’s Jana Kooren insisted it would. They also contended that provisional votes might or might not get counted weeks later after an investigation. Regardless, they said, some voters would be discouraged from showing up on Election Day.
During Tuesday’s press conference, Walz said he is willing to negotiate just about anything. But he will not yield to Republican plans to sunset the 2 percent health care provider tax, Walz said, nor will he compromise on full HAVA funding.
“If they want to talk about provisional balloting and all that, do it separate from this,” Walz said.
He said the GOP’s HAVA position “has now fallen into the theater of the absurd,” based on a “fantasy” about rampant voter fraud.
All of this drama is cast against the backdrop of Kiffmeyer’s statements a week ago, in which she seemed to dismiss the dangers of foreign intrusion into state elections.
“You’re being hacked all the time, I am,” she told the Star Tribune on April 21. “This is no big thing.”
Walz called that “an outrageous statement.” In an interview Tuesday, Simon concurred. “I think it’s a stunning thing to say for anyone in public office,” Simon said.
But it might at least partly explain why Kiffmeyer has allowed the issue to go unresolved so long, Simon said.
”If she believes — and has convinced others — that it isn’t, in her words, ‘a big thing,’” Simon said, “then maybe that accounts for not showing up to multiple conference committees. Maybe that accounts for not seeming to devote energy to this issue.”
Pressed by reporters on the issue Tuesday, Gazelka was quoted saying, “HAVA will get done by the end of session.”
To Nelson, that’s not much reassurance. “He said that at the beginning of session,” Nelson said.
