Bluestem has long respected GAC professor emeritus of mathematics, computer science, and statistics Max Hailperin's knowledge of Minnesota election law and history.
Here's his review of changes to the Gopher State's election law by the just-adjourned 2023 session, originally published in the Minnesota Reformer.
The 2023 Legislature did a lot on election laws. Here’s a (nearly) comprehensive look.
By Max Hailperin
The Minnesota Legislature passed three bills that affect election administration, two of which were already signed into law by Gov. Tim Walz, with his signature expected for the third. I’ll try to focus on major changes to elections policy.
Broadly speaking, the bills expand the franchise, remove obstacles to voting, increase transparency, and reinforce the state’s rejection of any interference with the voting process. The lies surrounding the conduct and outcome of the 2020 election were no doubt an important catalyst for the changes, but many of these ideas have been in the works for years.
Minnesota has been a leader in election law before, notably when it introduced flexible options for voter registration 50 years ago. Several of the changes in the current bills catch up with other states that have leapfrogged us, but on the whole, the package compares favorably.
HF28: Restore the Vote
The Minnesota Constitution specifies that any individual convicted of a felony loses the right to vote unless that right is restored to them. It is silent concerning the mechanism and timing of the restoration, leaving those topics for legislation.
The old law restored the right to vote once the individual completed their entire sentence, including any portion served in the community. The new law restores the right to vote as soon as the term of incarceration is complete. If the sentence does not include incarceration, they may immediately continue voting. If they move back-and-forth between incarceration and community, they are able to vote while in the community but not while incarcerated.
Beyond this core change, the law contains a few related provisions intended to ensure potential voters have accurate information on their status. It also updates the certifications each voter signs when registering to vote and again when voting.
HF3: Democracy for the People
Expanded and clarified time for pre-filing voter registration applications
Some Minnesotans who satisfy all eligibility criteria aside from age are allowed to submit their registration applications before turning 18. The county processes the application immediately but the resulting record in the Statewide Voter Registration System is in a pending status until the applicant’s 18th birthday. A pending registration is not included in the voting roster or public information list; it serves only to prepare for the subsequent activation.
The old law limited this pre-registration option to those who were going to turn 18 before the next election. That limitation was not as straightforward as it sounds because special elections can be added to the regular schedule. Under HF3, the option is open to anyone who has attained age 16.
Automatic voter registration
At least one, and perhaps more, state agencies will gain a new responsibility to forward information to the secretary of state, and thence the counties, in order to create or update voter registrations:
- The Department of Public Safety will perform the voter registration function when a Minnesotan applies for a driver’s license or state identification card, or to renew them. However, this only applies when the applicant has provided the necessary information to determine their eligibility, including documentation of U.S. citizenship. The citizenship documentation may be on file from a prior application.
- If the federal government permits, the Department of Human Services will perform the voter registration function when a Minnesotan applies for or renews MinnesotaCare or Medical Assistance — our version of Medicaid. Again, this includes only applicants who have provided evidence of U.S. citizenship.
- Other state agencies may be added in accordance with a longer-term process that starts with the commissioner of Minnesota Management and Budget reporting on the opportunities and challenges.
None of this becomes effective until the appropriate mechanisms are in place and have been shown to work correctly; federal authorization is obtained (for DHS); and funding is appropriated. However, the law does indicate some elements of the timeline. In particular, the DPS system is expected to be in place by Dec. 1.
Any person whose registration information is provided through these automatic means must go through two more steps before the county registers them. First, their eligibility is checked. Second, a notice is mailed to them advising them of their opportunity to decline during a 20-day period. Only if they do not decline are they registered. And even thereafter, they can request to have their registration canceled.
Application for ongoing absentee ballots
Existing law requires Minnesotans who want to continue voting absentee on a multi-year, ongoing basis to reapply each year, although they can file a request to be automatically sent blank application forms.
Now they will be able to request a ballot for each election until they request otherwise or become ineligible to continue, i.e. if they die, if a ballot is returned as undeliverable, or if their registration is deactivated or challenged. This new option will become effective on June 1, 2024.
Absentee ballot applicants list
Also effective on June 1, 2024, the lists of absentee ballot applicants will be available on the same basis as other voter information. This will include both a list of applicants for each specific election and a list of those who have applied to be repeatedly sent ballots.
Multilingual voting information
Starting in 2024, voting instructions and sample ballots must be translated into languages other than English. In districts where at least 3% of the population speak English “less than very well,” these written materials must be provided at polling places. And in some districts, a larger number of copies of the written materials are required, and an interpreter must be provided if enough registered voters request one. The law provides specific definitions and thresholds.
Protection of voting from intimidation and interference
The law provides new criminal and civil penalties for interference with voters and those who assist them. One example is threatening someone with harm if they vote. Another is deceiving someone about when and where they can vote as a way of preventing them from voting. A third is physically hindering someone from conducting a voter registration drive. These examples are only illustrative; one needs to read the law to see all of the protections.
HF1830: state govenment omnibus
New mechanisms to fund election administration
The omnibus doesn’t just appropriate money to cover the new expenses. It introduces two innovations in how Minnesota funds election administration.
For the first time in state history, an ongoing stream of state money will go to counties and cities to help defray their expenses, analogous to what the “Minnesota Miracle” did for education funding in 1973. Initially this will amount to $1.25 million per year. That’s in addition to a one-time appropriation of $500,000 to help local officials improve accessibility for voters with disabilities.
Also, any grant that Congress appropriates for election administration will no longer need to be appropriated by the Legislature before it can be spent. This removes a hurdle that does not apply to federal grants for other purposes.
Protections for election administration
Just as HF3 provides protections for voters and those assisting them, HF1830 provides protections for the administration of elections. This protection has four aspects.
One section protects the proper conduct of elections at individual polling places by giving county auditors and municipal clerks the authority to “remove any precinct election official at any time if the official engages in a neglect of duty, malfeasance, misconduct in office, or for other cause.”
A second section protects voting system data from improper disclosure by prohibiting county auditors and municipal clerks from creating or disclosing a copy of any voting system component’s storage except with explicit legal authorization. The same limitation applies to permitting anyone else to create or disclose a copy. If this sounds like an obscure crime, consider that cases have been investigated in Colorado, Michigan, North Carolina, Ohio, Pennsylvania, and Georgia.
While these first two sections address the risks that can be posed by rogue election workers, a third section provides two other forms of protection that extend to outsider threats.
First, it protects the election workers from intimidation or interference. As with HF3’s protection of voters and those assisting them, this provides both criminal and civil remedies. The difference is that it is specifically tailored to protect those who perform official duties, such as election judges, canvassing board members, and those working in election offices.
Second, that same section also prohibits tampering with voting equipment, ballot boxes, and the systems and documents that contain lists of registered voters.
Early voting
In 2024 (or later, if the necessary technical arrangements take longer), voters will gain a new way of voting in person before Election Day, which will be called “early voting.” They already have the option of voting ahead of Election Day using absentee voting, including in-person absentee voting and a special variant known as “direct balloting.” The new early voting mechanism is best understood by comparison with direct balloting.
To use absentee voting, a voter completes an application form and is issued a ballot by mail or in person. If they are voting in person during the first part of the 46-day absentee voting period, they are issued a ballot envelope and a signature envelope along with their ballot, just like by mail. After voting their ballot, they seal it in the ballot envelope, seal that in the signature envelope, and complete the certification form on the outside of the signature envelope. That sealed signature envelope is securely stored by the elections office, unopened, just like those returned by mail or dropped off.
But during the last seven days of the absentee voting period, voters have had the option to skip the envelopes and instead insert their voted ballot into an optical-scan tabulator like those used in Election Day polling places. This is what’s known as direct balloting and will be replaced by early voting, probably in 2024.
Like direct balloting, early voting is a process that doesn’t involve envelopes. The tail end is the same: The voter inserts their voted ballot into a tabulator. But the front end of the process is replaced. Rather than having to fill out an extensive absentee ballot application form, the voter will go through a more efficient sign-in process like the one used at polling places on Election Day.
Some other related changes will already take effect this summer. The period for voting without envelopes will be expanded from seven days to 18 days. Initially this will apply to direct balloting until early voting takes over. Within this 18-day period, voting locations will need to be open some specific days and times.
Related to this 18-day period during which voters can vote without envelopes, another change effective in 2023 is that elections offices will now be able to start opening absentee and mail ballot envelopes and processing the enclosed ballots during that entire 18-day period, rather than only the last seven days. This also entails a correspondingly earlier deadline for a voter who has submitted a ballot to change their mind and retract the ballot.
More consistent postsecondary student voter registration
Postsecondary institutions have long facilitated voter registration by the students in two ways. First, they provide voter registration information and forms. Second, they facilitate Election Day registration by providing student ID cards and a list of student residences, which can serve together as proof of residence. These two services have resulted from a combination of statute, administrative rule, and voluntary action, which has caused some inconsistency across the state. The new law enhances consistency by putting more specifics into statute.
Reporting changes for restore the vote
The omnibus fills in one implementation detail that was missing from the Restore the Vote bill, HF28. Namely, the reports that the state court administrator and commissioner of corrections supply to the secretary of state needed updating. Instead of reports relevant to the old standard, the reports now reflect those who are incarcerated for felonies and those who are released from such incarceration and therefore may become eligible to vote.
More detailed procedures for challenging voters before Election Day
Existing law provided that “upon petition filed with the county auditor, any voter registered within a county may challenge the eligibility or residence of any other voter registered within that county.” However, the specific procedures that were provided were skeletal. The omnibus substantially fleshes out the statutory language regarding the petition, how the petition is dismissed or heard, and how an affirmed challenge can be appealed.
Enhancements to electronic polling place rosters
In Minnesota, electronic rosters (also known as electronic pollbooks) always produce a printed document for each voter who is signed in or who registers at the polling place. Until this year, voters needed to sign that printout, although they could sign by making a mark or by having someone else sign on their behalf. Now, counties will also have the option to configure the rosters so that the voter signs on the tablet computer prior to the document being printed. This can further increase the accessibility for voters with disabilities and also ensure that the signature step isn’t inadvertently omitted. Electronic rosters will also be useful for early voting.
Absentee voting and mail ballot modifications
Absentee voters who drop off their ballots in person (or have someone else do it for them) now have until 8 p.m. on Election Day to do so, rather than only until 3 p.m. Likewise, voters who due to illness or disability have an agent pick up their blank absentee ballot and drop the voted ballot off now have until 8 p.m. for both steps of this process, rather than facing deadlines of 2 p.m. for pickup and 3 p.m. for return.
Anyone collecting absentee ballot applications can no longer be paid using an incentive system such as a rate per successful solicitation, a bonus upon achieving a target, or a penalty for failure to achieve a quota.
The bipartisan teams of election judges who visit health care facilities to assist with absentee voting now have 35 days before each election to complete this process rather than 20. The same process also now applies to veterans homes and, at the discretion of the local election administrator, shelters for battered women and assisted living facilities.
Counties have been electronically transmitting blank absentee ballots to voters with disabilities, when requested, in order to comply with the federal mandate to provide reasonable accommodations. The new law explicitly puts this into statute and also provides that the same mechanism be used for civilian personnel deployed in response to an emergency declared by the president or a governor. In both cases, the voted ballot still needs to be returned on paper. A separate law already provides a similar mechanism for members of the uniformed services, their family members, and citizens living abroad.
The semi-publicly available list of voters who have submitted accepted absentee ballots will now be divided into separate lists “by method of ballot delivery.”
Local governments outside the metro area have long been allowed to choose to offer voting by mail rather than establishing precinct polling places for townships and for cities with fewer than 400 registered voters. Now that same option exists also within the metro area.
Modifications to affidavits of candidacy
The omnibus modifies the affidavits that candidates need to file in three regards: email addresses, the conditions under which a candidate can keep their address private, and the means by which such a candidate’s residency is verified.
Candidates are now required to provide a nongovernmental email address unless they attest that neither they nor their campaign has such an address.
In order for a candidate to keep their residential address private, they no longer need to certify that a police report has been filed or an order for protection issued. Instead, they can simply certify that they have a reasonable fear for their own safety or that of their family.
Regardless of how a candidate certifies their need to keep their residential address private, it raises the question of how anyone can verify that they reside in the district they wish to serve, for those offices that have this requirement. Prior law required a registered voter to request the filing officer perform this verification, whereas now the officer automatically must verify the filing within one business day.
Extended eligibility of trainee election judges
Minnesota has long allowed municipalities to hire 16- and 17-year-old high school students to serve as valuable members of the team of election judges. However, there’s been an unfortunate gap in eligibility for those students who graduate before they turn 18 and become eligible to serve as ordinary election judges. Now that gap has been bridged: a trainee election judge who begins their service while a student can continue in that capacity even after graduating, up until age 18.
Election notice publication
Effective Dec. 1, or earlier upon notice from the secretary of state that they’ve worked out the details, counties will no longer be required to publish sample ballots. Instead, they’ll be able to publish a notice that provides information that applies to all the precincts in the area and a means to obtain a sample ballot specific to a voter’s precinct.
New alternative for ballot marking devices
In Minnesota, most voters mark their ballots by hand. However, each polling place must also provide a computerized ballot marking device that has assistive voting capabilities, such as allowing the voter to step through the ballot in audio form rather than visually. Traditionally these ballot marking devices have marked the voter’s choices onto the same kind of ballot as they would otherwise mark by hand. However, the omnibus now allows for an alternative kind of ballot marking device that prints the voter’s choices onto blank paper, even if this is different in format from the hand-marked ballots.
The law also contains several provisions intended to mitigate risks that would otherwise ensue. For example, hand-markable ballots must still be available; no record may be kept of which form of ballot each voter uses; and if 10 or fewer votes use the new form of ballot, then the election judges from that precinct may not participate in any manual recount or post-election review.
Cast vote records
Modern tabulators store data about each ballot rather than only keeping count of how many votes have been cast for each candidate. Election officials have not been sure of how to respond to public requests for this information.
On the one hand, there’s a general presumption that government data is public. On the other hand, there’s a constitutional requirement to protect the privacy of voters’ ballots.
The omnibus resolves this uncertainty by dividing the information into three classes, two of which are designated as nonpublic and one as public:
• Ballot images are protected nonpublic data.
• Textual cast vote record (CVR) data is protected, nonpublic data if it falls into certain categories likely to facilitate associating votes with particular voters, such as showing the order in which the votes were cast.
• Other than those limitations, textual CVR data is public.
Note that these are simply classifications under the usual Data Practices Act, not a requirement that any data be generated or that it be proactively published. As such, if a jurisdiction doesn’t produce CVR data of the kind that would be public, it need not start to do so. Presumably, however, more jurisdictions will, in the interest of transparency, now that they have clarity on what’s public. And presumably at least some of them will proactively make that data available on their web sites, rather than just responding to DPA requests.
Changed tine for public accuracy testing
Rather than publicly testing all voting systems within 14 days of Election Day, election officials are now required to do so at least three days before the voting equipment is used.
Absence from work
This omnibus extends the existing right to be absent from work in order to vote. Rather than applying only on Election Day, it also now applies to in-person absentee (or early) voting during the 46 days before Election Day.
State canvassing board declaration of winners
Filling in a gap in the existing statute, the new law says that when the state canvassing board reports the results for each federal office and each state office voted on in more than one county, it must declare the candidate who got the most votes to be elected.
Partisan candidate rotation
Previously, the order in which candidates’ names appeared on ballots depended on the kind of election. For primary elections and for the nonpartisan races in general elections, the order was randomly chosen and then rotated from each precinct to the next in a way designed to ensure each candidate appears at the top for an approximately equal number of voters. For partisan races on general-election ballots, on the other hand, the order was fixed with the party that previously got the least votes on top.
Now, the random order with rotation will also be used for partisan races, with the sole exception of the presidential race. That one will remain as is.
National popular vote
If enough states adopt an agreement to elect the president by national popular vote to constitute a majority of the electoral votes, then Minnesota will stop awarding all its electoral votes to the presidential candidate who gets the most votes in Minnesota. Instead, it will award all its electoral votes to the candidate who gets the most votes in the nation.
Campaign materials in or near polling places
Previous law prohibited political insignia in or near polling places. The broad term “political” was ruled unconstitutional by the U.S. Supreme Court in 2018. Now the statute is narrowed to apply only to “the name, likeness, logo, or slogan of a candidate who appears on the ballot” and similarly for ballot questions and political parties. It also now only applies during voting hours.
Altered definition of “major political party”
In addition to some new paperwork requirements, the omnibus makes two more substantive changes in the definition of “major political party.”
First, the vote share the party needs to receive is increased from 5% to 8%. However, this only applies to votes received in the 2024 general election onward. For votes cast in earlier elections, the 5% standard remains.
Second, the requirements that each major political party have local unit conventions and executive committees have been loosened. Previously these requirements applied to “each county or legislative district.” Now they require only “at least 45 counties or legislative districts.”
A study of voting issues including ranked choice voting
The omnibus does not create any new statutory requirements or authorizations concerning ranked choice voting. However, it does direct the secretary of state to “conduct a study of issues related to voter engagement, education, and improvements to the election system, which can include but is not limited to assessing ranked choice voting.”
The inclusion of ranked choice voting in the study’s scope appears at first blush to be optional, given the phrase “can include.” However, the secretary’s reports from the study “must include … findings related to … technical aspects of implementing ranked choice voting.”
The secretary is to produce an interim report by Feb. 1, 2025, and a final report by June 30, 2025.
Miscellaneous election administration provisions
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