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Minnesota Secretary of State Steve Simon visits with poll workers while touring the Brian Coyle Center on Election Day in Minneapolis. (AP photo: Jim Mone)
Minnesota Secretary of State Steve Simon visits with poll workers while touring the Brian Coyle Center on Election Day in Minneapolis. (AP photo: Jim Mone)

Bar Buzz: Too late, suit tries to block Canvassing Board

About two hours before the State Canvassing Board met Tuesday, a group of petitioners led by GOP congressional Tyler Kistner filed suit to block the board from certifying the 2020 election results.

The suit, which includes sitting Republican legislators Rich Draheim, Steve Drazkowski, Jeremy Munson, Tim Miller and Cal Bahr among its plaintiffs, failed in that task. The board certified the election results Tuesday afternoon without court intervention.

Nonetheless, plaintiffs attorney Susan Shogren Smith said the lawsuit remains live litigation

At 1:54 p.m. Tuesday, just six minutes before two of her Supreme Court colleagues took their places on the Canvassing Board, Chief Justice Lorie Gildea ordered the group to serve its petition, along with her order, to each respondent by 4:30 p.m. on Nov. 24. Her order gives respondents until 9 a.m. today (Monday, Nov. 30) to file any replies.

Respondents include Secretary of State Steve Simon, Supreme Court justices Margaret Chutich and Gordon Moore and Hennepin County District Court judges Regina Chu and Christian Sande—the five members of the State Canvassing Board.

Chutich, Moore and Justice Paul Thissen took no part in the decision to issue Tuesday’s order.

In addition to requesting that the court block the certification process, the Supreme Court petition asks justices to order “a complete, bi-partisan, statewide audit of the election.” Shogren Smith, a disability rights attorney from Brooklyn Center, signed the petition.

It generally accuses state and county election officials of failing to follow election laws and processes in various Minnesota counties, according to the synopsis in Gildea’s order.

It specifically alleges that Dakota County Elections Director Andy Lokken failed to follow proper post-election review procedures. And it charges that Simon improperly altered state election law by entering into various agreements, including a consent decree that allowed absentee ballots postmarked by Election Day to be counted through Nov. 10.

Through a spokesman, Simon said late Tuesday that he had no comment on the case.

Speaking by phone late Tuesday, Shogren Smith said she believes all respondents were served by the court’s deadline.

She said her clients will continue pressing the court for the statewide audit to identify what she described as rampant inconsistencies in state elections management.

“Despite what they wanted to say at the State Canvassing Board,” Shogren Smith said, “our elections are not secure. There are a lot of concerns that many people have.”

The 153-page filing, including affidavits, charges three counts of constitutional and separation-of-powers violations. “Illegal voters cannot themselves be disenfranchised but they can and do disenfranchise legal voters,” it says. “Legal Minnesota voters will be disenfranchised if the illegal votes are allowed to remain in the count.”

To David Schultz, the Hamline University political science and law instructor, those arguments sound like a repeat of unsuccessful claims that President Donald Trump has made in his effort to overturn the 2020 presidential election results in other states. “Across the country,” he said, “the courts have rejected that.”

He said, from what he knows, the plaintiffs in this case don’t appear to have much shot at success in Minnesota, either. “I like to call it hand-waving,” he said. “It’s symbolic at best. In some sense, it’s not even meritorious.”

Shogren Smith disagreed, saying the suit has merit because the process is not as open as it needs to be, which is why the audit is needed.

“I think that should happen, no matter what,” she said. “Because that’s how we can unpack the problem so that our legislature can think about what needs to happen.”

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About Kevin Featherly

Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former freelance writer who has covered politics, law, business, technology and popular culture for publications and websites in the Twin Cities and nationally since the mid-1990s.

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