Minn. Voters All. v. Office of The Minn. Sec'y of State

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Minnesota Voters Alliance, et al., Petitioners, v. Office of the Minnesota Secretary of State, Respondent.

No. A22-0111

Court of Appeals of Minnesota

August 15, 2022

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Minnesota Secretary of State

Douglas P. Seaton, James V. F. Dickey, Upper Midwest Law Center, Golden Valley, Minnesota; and Gregory J. Joseph Joseph Law Office PLLC, Waconia, Minnesota (for petitioners)

Keith Ellison, Attorney General, Nathan J. Hartshorn, Allen Cook Barr, Assistant Attorneys General, St. Paul, Minnesota (for respondent)

Considered and decided by Frisch, Presiding Judge; Worke, Judge; and Reilly, Judge.

REILLY, JUDGE

In this declaratory-judgment action under Minn. Stat. § 14.44 (2020), petitioners challenge the validity of Minnesota Rule 8210.2450, subparts 2 and 3 (2021) (the challenged rule), arguing that it conflicts with Minnesota Statutes section 203B.121 (2020 & Supp. 2021), such that petitioners cannot comply with both. The challenged rule provides guidelines for examination of absentee ballot envelopes by ballot board members. Petitioners contend that the challenged rule prohibits ballot board members from considering relevant evidence as required by the statute and prevents them from fulfilling their statutory duties. Because no conflict exists between the challenged rule and Minn. Stat. § 203B.121, we conclude that the challenged rule is not invalid .

FACTS

Petitioner Minnesota Voters Alliance is a nonpartisan organization that "advocates for election integrity and provides research and voter education." Petitioners Tony Ward, Thomas Polachek, and Edward Bailen are Ramsey County residents who served as election judges and were members of the ballot board for Ramsey County in the 2020 and 2021 elections. Ward Polachek, and Bailen intend to apply and serve in the same capacity in the 2022 elections.

"To promote accurate and secure elections, Minnesota law sets uniform requirements for processing and counting absentee ballots." Minn. Voters All. v. County of Ramsey, 971 N.W.2d 269, 272 (Minn. 2022). In 2010, the legislature enacted Minn. Stat. § 203B.121 (the ballot board statute or statute). 2010 Minn. Laws ch. 194, § 9, at 4-7. Under the statute, "[t]he governing body of each county, municipality, and school district with responsibility to accept and reject absentee ballots must, by ordinance or resolution, establish a ballot board." Minn. Stat. § 203B.121, subd. 1(a). The duties of the ballot board include accepting or rejecting absentee ballot signature envelopes,^[1] opening accepted envelopes, and storing and counting absentee ballots. Id., subds. 2-5. The only duty at issue here is the acceptance or rejection of signature envelopes.

Generally, any eligible Minnesota voter may request an absentee ballot by submitting a written application to the county auditor or municipal clerk where that voter resides. Minn. Stat. § 203B.04, subd. 1 (Supp. 2021). The application must provide specific identifying information and contain an oath by the voter swearing that the information on the form is accurate, the voter is applying on their own behalf, and the form is signed under penalty of perjury. Id., subd. 1(b)-(c). If the application satisfies the requirements of Minn. Stat. § 203B.04, the county auditor or municipal clerk sends the voter an absentee ballot, a signature envelope, a security envelope, and directions for completing the absentee ballot. Minn. Stat. § 203B.07, subd. 1 (2020).

The signature envelope contains a certificate of eligibility to vote, which has space "for the voter's Minnesota driver's license number, state identification number, or the last four digits of the voter's Social Security number, or to indicate that the voter does not have one of these numbers." Id., subd. 3 (2020). The certificate requires a sworn statement signed by the voter confirming that the voter meets all legal requirements for voting by absentee ballot and space for a statement to be signed by a qualified witness (a registered Minnesota voter, notary public, or other person authorized to administer oaths) that the proper protocol was followed in marking the ballot. Id. The components of the certificate of eligibility track the identifying information collected on the application. Compare Minn. Stat. § 203B.04, subd . 1(b)-(c), w ith Minn. Stat. § 203B.07, subd . 3.

After the voter completes the absentee ballot as directed, the voter returns the ballot to the county auditor or municipal clerk. Minn. Stat. § 203B.08, subd. 1 (Supp. 2021). Within days of receipt, the county auditor or municipal clerk d elivers all ballots to the ballot board. Minn. Stat. §§ 203B.08, subd. 3, .121, subd. 2(a) (Supp. 2021). Upon delivery, two or more members of the ballot board examine each signature envelope and mark it accepted or rejected. Minn. Stat. § 203B.121, subd. 2. The statute requires the ballot board to accept an absentee ballot if a majority of ballot board members examining the signature envelope are satisfied that it meets statutory criteria. Id.

Soon after the legislature enacted the ballot board statute, the Secretary of State promulgated Minn. R. 8210.2450 (2021) to provide guidance for the ballot board's examination of signature envelopes under Minn. Stat. § 203B.121. See 34 Minn. Reg. 1553, 1571-72 (May 10, 2010) (adopting rule); 38 Minn. Reg. 1363, 1368 (Apr. 21, 2014) (amending rule); 40 Minn. Reg. 1549, 1553 (May 23, 2016) (amending rule). Petitioners argue that the challenged rule (subparts 2 and 3 of rule 8210.2450) conflicts with the ballot board statute (Minn. Stat. § 203B.121).

DECISION

I. Scope of pre-enforcement review

In a declaratory-judgment action, this court has original jurisdiction to determine the validity of an agency's rules. Coal. of Greater Minn. Cities v. Minn. Pollution Control Agency, 765 N.W.2d 159, 163 (Minn.App. 2009), rev. denied (Minn. Aug. 11, 2009). An interested party^[2] may bring a section 14.44 pre-enforcement declaratory-judgment action to challenge the validity of an agency rule "when it appears that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair the legal rights or privileges of the petitioner." Minn. Stat. § 14.44. We may declare a rule invalid if it (1) violates the constitution; (2) exceeds statutory authority; or (3) is adopted without compliance with rulemaking procedures. Minn. Stat. § 14.45 (2020).

Here, petitioners argue that the challenged rule exceeds statutory authority. Whether an agency exceeds its statutory authority is a question of law that we review de novo. In re Application of Minn. Power for Auth. To Increase Rates for Elec. Serv., 838 N.W.2d 747, 753 (Minn. 2013). Agencies can adopt rules to "implement or make specific the language of a statute, [but] they cannot adopt a conflicting rule." GH Holdings, LLC v. Minn. Dep't of Com., 840 N.W.2d 838, 842 (Minn.App. 2013) (quotation omitted). To the extent that a rule conflicts with the statute, the statute prevails. Hirsch v. Bartley-Lindsay Co., 537 N.W.2d 480, 486 (Minn. 1995).

II. The challenged rule does not conflict with the ballot board statute.

A. Minn. Stat. § 203B.121

We first address the parties' disagreement about the meaning of the ballot board statute. Although both parties assert that the statute is unambiguous, they disagree about its meaning. "The threshold issue in any statutory interpretation analysis is whether the statute's language is ambiguous." State v. Peck, 773 N.W.2d 768, 772 (Minn. 2009). A statute is ambiguous only when it is reasonably susceptible to more than one interpretation. Id.

The ballot board statute requires a ballot board to accept a signature envelope if a majority of members examining it are "satisfied," in relevant part, that:

(1) the voter's name and address on the signature envelope are the same as the information provided on the absentee ballot application;

(2) the voter signed the certification on the envelope; [and]

(3) the voter's Minnesota driver's license, state identification number, or the last four digits of the voter's Social Security number are the same as a number on the voter's absentee ballot application or voter record. If the number does not match, the election judges must compare the signature provided by the applicant to determine whether the ballots were returned by the same person to whom they were transmitted[.]

Minn. Stat. § 203B.121, subd. 2(b)(1)-(3).^[3]

Petitioners contend that to be satisfied that "the voter signed the certification on the envelope," they must rely on all evidence before them, including signature comparison, and "their training, experience, wisdom, and best judgment." Respondent counters that, read as a whole, section 203B.121, subdivision 2(b), permits signature comparison only if the voter's identification number (e.g., Minnesota driver's license number) on the signature envelope does not match the voter's ballot application or voter record. We agree with respondent.

Although the statute requires the ballot board to be satisfied that the voter's name on the signature envelope is "the same as the information provided on the absentee ballot application," id., subd. 2(b)(1), and that "the voter signed the certification on the [signature] envelope," id., subd. 2(b)(2), it requires signature comparison only when an identification number on the signature envelope does not match the application or the voter's record, id., subd. 2(b)(3). The statute does not require identical signatures, or require further inquiry if a signature discrepancy occurs, as it does with mismatched identification numbers. Reading the three provisions together, as we must, we...