Simon accused of misleading local governments on absentee ballot boards [updated]

More than one in four Minnesotans voting in the 2022 election cast an absentee ballot. The genie’s out of the bottle post pandemic, setting the stage for the number of absentee voters to increase in the 2024 election and beyond.

That puts the spotlight on the absentee ballot boards responsible for processing and verifying votes more than ever. Counties, cities and other entities must balance the make-up of absentee ballot boards by including election judges from both political parties to ensure impartiality.

Local governments may also supplement election judges on absentee ballot boards by appointing staff and other individuals to be temporary deputy clerks or deputy county auditors as needed–up to a point.

In a case brought by the Minnesota Voters Alliance, the Minnesota Supreme Court ruled last year that only a party-balanced election judge on the absentee ballot board, rather than a potentially partisan appointee, can review challenged absentee ballots. American Experiment reported on the decision in Thinking Minnesota.

The court ruled that if the identification number on a voter’s signature envelope does not match the ID number on his absentee voter application, a signature review must be performed only by a party-balanced election judge — not a regular ballot board member appointed by a potentially partisan county auditor. 

Despite the state high court’s clear cut decision, MVA says Minnesota’s top election official, Secretary of State Steve Simon, continues to undermine the effort to ensure that absentee ballot boards are impartial. The voters rights group says the suggested wording for local governments on the state’s election website gives the impression that absentee ballot boards can be comprised of either election judges or individuals appointed by local officials.

The Upper Midwest Law Center put Simon on notice in a pointed four-page letter on behalf of MVA.

The sample language, and the language of these counties’ resolutions, is likely to lead to confusion when the counties formally appoint individual members to their ABBs. If the counties fail to properly staff their ABBs, MVA is likely to be forced to seek mandamus relief against them to ensure proper staffing.

…it leaves open the possibility that an ABB could be staffed entirely by deputy county auditors. The Minnesota Supreme Court has held that such a staffing arrangement would be unlawful in two different decisions in the past two years.

The problematic language on the state website dates to 2019, prior to the Minnesota Supreme Court rulings. MVA sent Simon updated language to accurately reflect absentee election board law but the state’s top election official has yet to respond.

We therefore request that you revise the Sample Resolution to include language that
ensures party-balanced election judges are appointed to county ABBs. Every county must have at least two election judges on its ABB, balanced by party, who can perform the signature-matching duty and other duties solely entrusted to election judges.

UPDATE: Attorney James Dickey of the Upper Midwest Law Center reports Secretary of State Steve Simon has corrected the confusing language on the state website as requested.

We sent Secretary Simon a letter on June 6 asking him to make edits to the state’s model absentee ballot board resolution because the most recent version was inconsistent with the Minnesota Supreme Court’s recent cases, and some counties had adopted that incorrect model. Specifically, the Secretary’s model resolution did not require the appointment of election judges to each absentee ballot board. 

After reviewing our letter, the Secretary, through his general counsel, responded that the Secretary had modified the model resolution to conform to the Supreme Court’s decisions. It now says that election judges must be included on absentee ballot boards.

Here’s the corrected language on absentee ballot boards for local governments.

The prior version reads, in relevant part, as follows:

WHEREAS, the Absentee Ballot Board would consist of a sufficient number of election judges as provided in sections 204B.19 to 204B.22 or deputy county auditors trained in the processing and counting of absentee ballots;

The new version reads like this:

WHEREAS, the Absentee Ballot Board must consist of a sufficient number of election judges appointed as provided in sections 204B.19 to 204B.22; and 

WHEREAS, the Absentee Ballot Board may include deputy county auditors trained in the processing and counting of absentee ballots;