Perspectives: Simon says: Courts follow secretary of state

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Next year on this date, Tuesday, Nov. 3, 2026, Minnesota Secretary of State Steve Simon will be a busy man. Not only may he be awaiting the results of his fourth run for his constitutional position, if he chooses to run again, but he and his staff also will be exercising one of their chief duties: overseeing the electoral process.

It will be a sizeable one, with midterm elections for Minnesota’s eight U.S. House seats, the U.S. Senate seat to be vacated by the retiring Tina Smith, the governorship, and the three other constitutional offices (lieutenant governor on the gubernatorial ticket, attorney general, and auditor). Additionally, all 201 seats in the Minnesota Senate and House of Representatives will be contested, along with a myriad of county, municipal, and local offices.

Simon will be doing his job under the glare created over his position and his counterparts in other states stemming from the 2020 post-post-election balloting brouhaha.

In addition to his election-related duties, Simon’s office supervises business and corporate filings and several other functions.

But it’s the balloting one that attracts the most attention, effort, time, and resources at election time.

Much of both of those four features have been on display in the past year as the Democratic-Farmer-Labor Party secretary of state has fended off a number of electoral challenges. Challenges and more are expected to come his way in 2026. The election only one year away provides a timely occasion to review how the Minnesota courts have addressed what Simon says in several cases.

Simon’s start

Simon started the year off with a victory in a tussle at the state Legislature involving the impasse created by a partisan deadlock in the House of Representatives due to a 67-66 division in that body between Republicans and DFLers, and one vacancy, following the November election in Simon v. Demuth, 16 N.W.3d 355 (Minn. 2025).

The Secretary of State sued the Republican leader in the House after she moved to adjourn a session when only the 67 GOP members were present in the 135-member body, as the 66 DFLers boycotted over a stalled power sharing arrangement.

The court subsequently denied 29 recall petitions filed against DFLers, who did not attend the sessions, which preceded a special election that a DFLer won to create a 67-67 tie and ultimately led to a mutually agreeable arrangement there through the end of the 2025 session.

“A [person’s] rights rest upon three boxes: the ballot, the jury-box and the cartridge box.”
Civil Rights Advocate Frederick Douglass (1818-1895)

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“No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns.”
Journalist & humorist Finley Peter Dunne (1867-1935)

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“Vote early and vote often.”
Universal slogan of ward heelers 

Trifecta triumphs

Secretary of State Simon achieved another election-related triumph in Minnesota Alliance for Retired Ams. Education Fund v. Simon, 19 N.W.3d 480 (Minn. App. 2025). The DFL secretary, who has made no secret of his interest in higher office like the governorship, would if he ascends, become the first constitutional officer to reach that position since Republican Arne Carlson, who served from 1991 to 1998 after a 12-year stint as state auditor. But as the secretary of state for the time being, Simon litigated a challenge to a claim by a voter advocacy group claiming that the witness requirement for absentee voting violates federal voting law as some 27% of the electorate voted absentee in 2022.

Reversing a ruling of the Ramsey County District Court, the Court of Appeals held that the provision, Minn. Stat. § 203B.07, subd. 3, is not violative of the federal Voting Rights Act or Civil Rights Act. Pointing to similar cases throughout the country and a “handful of other courts,” it reasoned that the necessity of a witness does not transgress the prohibition in the federal statute against “vouching” in 52 U.S.C. § 10501(a), (b)(4) because it does not call for any voter to prove their identity to another.

Nor does the witness obligation conflict with a portion of the Civil Rights Act 52 U.S.C. § 101(a)(2) because the certification does not relate to voter application or other registration requisites.

The secretary of state achieved a trifecta when the U.S. Supreme Court denied certiorari of a challenge to a requirement that a candidate have an active law license to run for a seat on the state Supreme Court.

The seemingly endless litigation saga of Michelle MacDonald seemed to come to an end for the time being, when the U.S. Supreme Court refused to hear her challenge to a ruling by the state Supreme Court that she could not run against Justice Anne McKeig while MacDonald’s law license was suspended and thus did not satisfy the “learned in the law” requirement for eligibility to serve on the court in Article VI, § 5 of the Minnesota Constitution. MacDonald v. Simon, No. 24-862 (March 24, 2025) was the second time the justices have declined to hear an appeal from her.

The decision came after the persistent litigant had her suspension by the Board of Professional Responsibility upheld by a substitute state Supreme Court panel, filling in for the recused justices. One of the improprieties consisting of making knowingly false statements about judge’s lack of integrity and not obtaining client approval of a fee splitting arrangement, in McDonald v. Simon, 12 N.W.3d 445 (Minn. App. 2024).

The secretary racked up another victory when a potential candidate for the state Supreme Court challenged the statutory allowance of the word “incumbent” after the name of a challenged sitting judge on the ballot, pursuant to Minn. Stat. § 204B.36, subd. 2.

The Supreme Court, in a brief unpublished brief order, ruled that the claim was not ripe because the filing period for the next concerning a tribunal did not open until the following May. Thus, his claim was rejected that the term violates Article I, § 9, clause of the U.S. Constitution barring any “titles of Nobility” created an “unfair advantage.”

Former fighter

Simon’s litigation victories in high-profile cases even included a win over his predecessor as secretary of state, Joan Growe, a DFL icon and unsuccessful U.S. Senate candidate in 1984, who served in that position from 1975 to 1999. She and other petitioners sued him, in his official capacity as overseer of the ballots late in 2023, fighting to keep President Donald Trump off the ballot due to his alleged incitement of the Jan. 6 riot at the Capitol, under the disqualifying “insurrection clause” of the 14th Amendment. One of four legal actions of that year that arose across the country, it was dismissed by the state Supreme Court early in 2024 in a decision written by Justice Natalie Hudson dismissing it as not ripe prior to his nomination for president in Growe v. Simon, 2 N.W.3d 490 (Minn. 2024).

Shortly thereafter, the U.S. Supreme Court overturned a Colorado state court ruling barring him from the ballot, which brought that movement to a halt, in Trump v. Anderson, 601 U.S. 100 (2024).

Growe herself as no stranger to a U.S. Supreme Court litigation fracas. She was a named party to a reappointment case that the justices in the nation’s capital decided in her favor in Growe v. Emison, 567 U.S. 25 (1993).

With his victories, Simon has established himself as a successful litigant as well as administrator, reflecting that what Simon says is often adopted by the courts.

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PERSPECTIVE POINTERS

Some other folks named “Simon”

Paul Simon: Hall of Fame musician, formerly with “Simon & Garfunkel.”

Carly Simon: Bestselling singer, daughter of publishing magnate of Simon & Schuster.

Paul Simon: Liberal Illinois senator and 1988 Democratic presidential aspirant.

Simon Wiesenthal: World War II Nazi hunter.

Steven Simon: Ex-U.S. National Security Foreign Service director.

“Simon”: Likeable character in “Lord of the Flies” novel.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer, Njus, Tanick, Linder & Robbins, PA.