“Vote early and often.”
Congressman William Miles (March 13, 1858)
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“[E]very voter … exercises a public trust.”
President Grover Cleveland, Inaugural Address (March 4, 1886)
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“All politics is apple sauce.”
Humorist Will Rogers, The Illiterate Digest (1924)
It’s that time of year when elections loom.
With the midterm congressional elections at the federal level, along with the selection of constitutional officers and all members of both houses of the Minnesota Legislature set for Tuesday, Nov. 8, politicians around the country and Minnesota are scurrying for support from prospective voters.
As usual, the political efforts are accompanied by litigation. The Minnesota Supreme Court addressed a pair of residency eligibility cases right before the primary elections this summer, and that court, along with the Court of Appeals, also addressed another couple of ballot brouhahas. All four challenges were rejected by those tribunals.
The quartet of failed cases may foreshadow what is likely to be a busy season at the ballot box and in the courts this fall and thereafter.
A challenge to the eligibility of a sitting state senator redistricted into a new territory, claiming that he was not a resident of the newly created district, failed in Olson v. Simon, 978 N.W.2d 269 A1070 (Minn. Aug. 5, 2022). The case was brought by a resident of the newly configured Senate District 23 in southern Minnesota against Gene Dornink, a Republican who has for the past two years represented a different district while living in Hayfield. Due to redistricting after the 2020 census, Hayfield was placed in a different district, prompting Dornink to announce his decision to move his residence to run in the new district, claiming in an affidavit that his residence’s address was now in Brownsdale, which is located in the new territory.
The challenge was brought by a supporter of a candidate seeking the GOP nomination, claiming that Dornink was not eligible for reelection because he did not live in that new district six months prior to the upcoming election, as required by Article IV, § 6 of the Minnesota State Constitution, Minn. Stat. § 204B.06, subd. 4(a)(4). The challenger claimed that Dornink actually lived at his old address in Hayfield, based upon affidavits of three people who reportedly investigated where he had been living since May 8, 2022, the residency deadline, and she sought an order removing him from the ballot for the primary election.
Not addressing the merits, the Supreme Court directed that the petition “should be dismissed on laches grounds.” The order, issued a few days before the primary, explained that laches applies to election ballot challenges when the petitioner fails to “act with diligence and expedition in asserting [a] claim.” The laches doctrine initially turns on whether the petition “unreasonably delays asserting a known right, which is applicable in this case as the case was brought 65 days after Dornink filed his affidavit of candidacy, 35 days after absentee voting began for the primary, and less than two weeks before the primary.
While “some” delay in challenging a candidate’s residency “may be excused,” as the challenger gathers information about the residency issues, the sparse record in this case indicated that the petitioner did not act expeditiously nor diligently in [the] investigation, making two visits to the Brownsville property within four days of the filing of the candidacy, then waiting 18 days to visit again, followed by two other visits, and another one month delay, before making a last investigative visit.
These “long periods” in which the petitioner and her colleagues, “did nothing to investigate … was unreasonable.” Further, there was a significant prejudice if Dornink was disqualified from the ballot because they had already been printed, absentee voting [has begun] … and the primary is just days away.” Because of these considerations, prejudice will result from ordering [the removal of Dornink’s name] from the primary ballot. In sum, the petitioner’s unreasonable delay in filing the petition and the substantial prejudice that would result from making a last-minute change to the ballots” warranted dismissal of the petition.
The dismissal was expressly made without prejudice, leaving open the remote possibility of further litigation on the matter during the upcoming election campaign, Dornink faces a DFL challenger, Attorney Brandon Lawhead, who practices in Albert Lea.
The Dornink ruling came a couple of weeks after the court determined that another candidate for a Senate in Ramsey County also was ineligible on residency grounds in Landis v. Simon, No. A22-0804, (Minn. July 15, 2022). The case involved Edward Strickland, whose affidavit of candidacy as a Republican, declared him to be a resident of Maplewood, in suburban Ramsey County. That did not suffice because he “does not and will not have resided” in the Senate district he sought to represent for six months immediately preceding the election, as required by law.
Because he “failed to satisfy the constitutional residency requirement,” he was knocked off the ballot, leaving only one remaining candidate on the ballot to represent [the] party in the general election this November.”
A challenge to the electronic voting system (EVS) of the city of Rosemount for its primary in Dakota County was rejected in Kieffer v. The Governing Body of Municipality of Rosemount, No. A22-1081 (Aug. 9, 2022).
The petitioner claimed that the city is using a different version of software than it had in the past, without complying with Minn. Stat. § 206.58, according to dissemination of information to the public about the use of a new voting system at least 60 days prior to the election, which had not been done.
As in the Dornink case, the court eschewed the merits and ruled solely on “laches ground.” It applied a similar analysis, pointing out that the petitioners had complete knowledge of all of the relevant facts concerning the EVS by late June, but waited over a month (34 days), after receiving actual knowledge of the information “to file their challenge.” This length of delay, or even a shorter one, was “unreasonable.”
Further, there would be prejudice because of directing the dissemination of information at this late stage, before the primary, would create severe pragmatic problems and increase costs in requiring election officials to try to implement a new voting procedure on the eve of the election. Doing so would also have impact beyond the city of Rosemount, affecting a number of other cities and counties that use the new system. Because of the “substantial prejudice” because of the unreasonable delay, coupled with substantial prejudice, the case was dismissed on laches grounds.
A challenge to a rule regarding counting of absentee ballots failed in Minn. Voters Alliance v. Office of Secretary of State, 2022 WL 3348641 (Minn. Ct. App. Aug. 15, 2022)(unpublished). The lawsuit, brought by a frequent election-challenging organization, claimed that portions of Minn. R. 840.2450 providing guidelines for the examination of absentee ballot envelopes by election board members conflicted with Minn. Stat. § 203B.121.
As a pre-enforcement declaratory judgment action, the case was subject to original jurisdiction by the Court of Appeals, which rejected the claim that guideline rules exceed the statutory authority extended to ballot counters.
The appellate court disagreed, rejecting the contention that in determining the validity of the signature on the absentee ballot envelope the board must rely upon signature on the ballot compared with the one on the ballot application, along with “their training, experience, wisdom and best judgment.” But the court viewed that exercise as improper because the statute permits “signature comparison only if the voter’s identification number … does not match the voter’s ballot application.”
The wide-ranging discretion advocated by the challenging organization was unacceptable because the statute “does not require exact conformity between [an absentee] signature envelope and [an] application.”
These four cases show the difficulties claimants face in challenging ballot related matters in Minnesota, where courts are reluctant to make major changes in the absence of compelling circumstances.
Residency requirements for state legislators
- Qualified voter in the state
- One year residency in the state
- Six months residency immediately preceding election in the district
- Each house is “judge” of election returns and eligibility of its own members
Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
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