ST. PAUL, Minn. (CN) — A federal judge declined to give his blessing Tuesday to a consent decree temporarily waiving Minnesota’s requirement that absentee voters get a witness to sign their ballots, less than a week after a state judge approved a similar agreement.
The decision from the bench was hailed by Republicans, who raised alarms when Ramsey County Judge Sara Grewing approved a separate consent decree waiving the requirement last Wednesday. That order remains intact and it’s unclear whether U.S. District Court Judge Eric Tostrud’s decision will impact it.
Tostrud’s refusal to sign a similar consent decree is the latest development in a fast-paced case brought by the League of Women Voters of Minnesota seeking to overturn the witness requirement, which requires would-be absentee voters to get another Minnesota voter or a notary public to sign their ballot. The voting rights group has argued the provision could prevent immunocompromised voters or others worried about Covid-19 from safely voting.
The League of Women Voters sued Democratic Secretary of State Steve Simon on May 19, and 10 days later sought a preliminary injunction preventing Simon from enforcing the witness requirement. In between those motions, attorneys for both parties told Tostrud they began negotiations on a proposed consent decree, which was filed June 16.
Republicans, including the Donald Trump campaign, cried foul and intervened in the federal case last week.
In a Zoom fairness hearing plagued by technical issues Tuesday afternoon, the Republicans’ attorney Cam Norris of the Washington firm Consovoy McCarthy argued that the consent decree did not address a federal question and that voting in person or by mail with a witness was already safe enough.
“Importantly, the secretary has never said that in-person voting is unsafe,” Norris said. “Of course, he’s said it’s safe – he’s actually provided several measures to make it more safe.”
The attorney also nodded to Minnesota Republican’s accusations that the decrees were the result of collusion between Simon and Democrat-friendly groups.
“The intervenors weren’t in the room where it happened, so we don’t know the extent of the bargaining and we never will,” he said. “We’re not here to nitpick the product of reasonable negotiations, but at some point the product is unreasonable enough that you’re left to question whether it was an arm’s length deal.”
Minnesota Assistant Attorney General Hillary Taylor and League of Women Voters attorney Jonathan Diaz of the Campaign Legal Center contested that idea, and Tostrud gave it little credence.
“I cannot say that the terms of the… consent decree themselves show procedural unfairness,” the judge said, adding that he was also convinced that the witness requirement could prevent League of Women Voters board member Vivian Latimer-Tanniehill from voting.
“The problem as I see it, under the law, is that the consent decree goes well beyond that,” Tostrud said.
He agreed with the intervenors that the scope of the proposed order was too broad. The witness requirement could prevent some of those most vulnerable to Covid-19 from voting, he said, but preventing its enforcement wholesale would be excessive.
Tostrud pointed to a paragraph in the proposed decree in which Simon agreed not to enforce the witness requirement “for absentee voters who fear that complying with the requirement will risk their health and safety.”
“It seems unreasonable to read that sentence and clause and conclude that it is meant to describe every Minnesota absentee voter,” the judge said.
Taylor and Diaz had argued that declining to enforce the provision was the only way to ensure that absentee voting is available to those who needed it.
“This is not the same situation as not enforcing a speed limit,” Taylor said. “It is asking individuals to determine whether they are at-risk enough to conform to a certain standard.”
Tostrud said he would leave the question of where the case would go from here for another day. Assertions that the Ramsey County case would moot this one, he said, were without merit since that case was still going on.
“I would ask,” he said, “but I appreciate that there are many possibilities, and I don’t think it’s fair to put you all on the spot and expect an answer.”
Speaking in an interview after the hearing, Diaz said he wasn’t yet sure of next steps but emphasized that the case sought relief beyond the August primary. He was also relieved that Tostrud had seen the merits of his client’s claims even as he denied them immediate relief.
“Even though Judge Tostrud didn’t approve our consent decree, he did acknowledge the real burdens faced by our client… and other people in her circumstance, that the witness requirement imposes in light of the pandemic,” he said.
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