A pugnacious advocacy group skeptical of election processes in Minnesota has won another round in court against the political establishment. The dispute doesn’t so much raise questions about elections as it deepens concerns about Minnesota officialdom’s commitment to openness.
The Minnesota Voters Alliance, a self-styled strike force of “election integrity watchdogs,” prevailed last week in a ruling from the Minnesota Court of Appeals. The appeals panel upheld MVA’s lower court victory in a lawsuit seeking access to voluminous records on voters kept by the Secretary of State’s office.
Secretary of State Steve Simon had released basic voter registration information to MVA, but has declined to release other kinds of data, chiefly records concerning voters whose eligibility to cast a ballot had been “challenged” after the fact. Citing worries about voter privacy, Simon says he intends to appeal once again, to the state Supreme Court.
There is of course no telling what the high court will decide. But the Alliance is on a bit of a winning streak. Last year, a seven-year legal slugfest ended at the U.S. Supreme Court, with MVA winning a 7-2 judgment overturning a Minnesota law that banned from polling places T-shirts, caps or other apparel that displayed any sentiment an election judge deemed “political” — even if no candidates or ballot issues were involved.
After somewhat embarassing oral arguments during which the state’s lawyers struggled to explain the unbiased standards upon which free expression was criminalized to preserve polling place “decorum,” the high court majority, including two of its stalwart liberals, found Minnesota’s law unconstitutionally vague.
In the new case, “privacy” is playing the role “decorum” occupied in the earlier controversy. Both are important policy objectives. The issue becomes whether, in pursuing such goals, Minnesota officials have shirked more critical duties — to protect free speech, say, or obey duly enacted open government laws.
Andy Cilek, who heads up the Voters Alliance, describes the current controversy bluntly. Simon, he says, “doesn’t want to give us everything one would need to do a thorough analysis of our election system — to examine the Secretary of State’s performance and analyze the extent of ineligible voting.” MVA is convinced that ineligible voting is far more common than officials let on, perhaps especially voting by felons whose right to vote has not yet been restored. In any case, the Alliance wants access to public records so it can dig into the question.
The data at the heart of the dispute involve voters who register at the polls on Election Day. Later on, officials run checks on their eligibility — place of residence, criminal record, citizenship, etc. When discrepencies arise — say, the Post Office returns an address verification as undeliverable — the voter’s registration goes into “challenged” status and an effort to resolve the issue ensues.
Simon insists that nearly all challenges are resolved satisfactorily (i.e., the voter moved after Election Day or had regained voting rights). He notes that precious little voter fraud has been substantiated in Minnesota or elsewhere, citing a 2018 evaluation from the respected office of Minnesota’s Legislative Auditor. The auditor did not find evidence of widespread voting fraud, though the report does describe some vulnerabilities in Minnesota’s system and some uncertainty about the extent of ineligibile voting.
In any case, Cilek and MVA want to investigate for themselves. But Simon fears giving “sensitive information” to “agenda-driven political groups” lest it lead to “harassment and intimidation.” He doesn’t want a challenged registration status to become a “scarlet letter.”
Partisan agendas are no doubt a factor in this dispute. Though MVA is formally nonpartisan, anxiety about voter fraud is a Republican theme, often championed by President Donald Trump. Democrats (like Simon) commonly dismiss such concerns, warn of voter suppression and call for efforts to make casting a ballot ever easier.
The fate of the immediate dispute comes down to a specific issue of law. The Court of Appeals panel found that state “data practices” law makes all government-collected data available to the public unless it is one of the specific types of data the Legislature has expressly categorized as confidential. The data MVA wants isn’t one of them, the court ruled.
Simon and his lawyers believe the statutory language confers discretion on the secretary of state to release or withhold certain voter data as he deems appropriate. But the court described that argument as “nonsensical.” Under the law, in the court’s view, government data are either private (by legislative decree) or public, with no discretionary space in between.
The appeals panel, of course, could later be overruled. But beyond the legal arguments, a deeper question lies close to the heart of this disagreement. Just how much confidence should the public have in establishment institutions’ ability and inclination to scrutinize themselves?
Simon protests that “law enforcement has been entrusted to look into this [voting irregularities].” He adds: “If any challenge is not resolved it must be turned over [to law enforcement authorities].” MVA, Simon says sketpically, seems to believe they are “the only ones” who can be trusted to investigate these issues.
But setting aside the Alliance’s particular motives, the whole rationale for open government laws and for conducting public business in public — the whole rationale for journalism and all other troublemaking watchdogs, for that matter — is a conviction that trusting government to keep an eye on itself is not good enough.
A renewed zeal for secrecy in government seems abroad in many quarters. It was reflected recently in the Hennepin County court’s abortive intention to conceal from public view key body camera evidence in the Mohamed Noor police shooting case. It’s a trend that needs resisting.
In recent months and years, Minnesotans have learned about government failures to properly investigate 1) hundreds, even thousands, of sexual assault complaints; 2) widespread fraud in a state-subsidized child care program; 3) hundreds of complaints of elder abuse in assisted-living facilities; 4) child abuse and neglect in countless child-protection cases; 5) unethical conduct in clinical drug trials at the University of Minnesota, and, well, need one go on?
Government agencies have “been entrusted” to keep politics pure? What could possibly go wrong?
D.J. Tice is at Doug.Tice@startribune.com.