Judge Allows Narrow Challenge to Minnesota Witness Rule for Absentee Ballots

A limited challenge to Minnesota’s absentee ballot witness signature requirement as applied to elections affected by Covid-19 survived, but two broader constitutional challenges to the rule were tossed out.

Minneapolis voters line up to vote early in the state’s primary election on Aug. 10, 2020. (AP Photo/Jim Mone, File)

ST. PAUL, Minn. (CN) — A Minnesota federal judge refused to dismiss entirely a challenge from voting rights advocates to the state’s requirement of a witness signature on mail-in ballots for the duration of the Covid-19 pandemic.

U.S. District Court Judge Eric Tostrud’s ruling issued Monday — the latest in a monthslong fight over a rule that requires Minnesota voters to get their mail-in ballot signed by a notary public or another voter — let the as-applied challenge survive a motion to dismiss from the Republican National Committee and Republican Party of Minnesota, who intervened in the matter last summer.

As the country at large struggled to contain the spread of Covid-19 last year and find a way to safely and effectively conduct elections amid its dangers, disputes emerged in Minnesota over the witness requirement, in part due to two consent decrees seeking an agreement to waive the state’s witness requirement to facilitate voting during the pandemic, as well as other litigation to that end.

Voting rights advocates — like the League of Women Voters of Minnesota, which brought the action subject to Monday’s decision last May — argue the requirement creates multiple unconstitutional hurdles to voting, whereas Republicans have called the push to waive the requirement an end-run around election safeguards intended to discourage fraud.

Tostrud, a Donald Trump appointee, refused to sign off on one consent decree temporarily waiving the rule last June, days after Ramsey County Judge Sara Grewing approved a separate consent decree entered by Minnesota Secretary of State Steve Simon and the Minnesota Alliance for Retired Americans.

Simon, a Democrat, has been the point person for negotiating the consent decrees with voting rights groups and was the defendant in the lawsuit brought by the League of Women Voters.

Ultimately, the witness requirement was waived for the November general election subsequent to Grewing’s approval of yet another consent decree between Simon and a local chapter of the NAACP. Grewing did not allow Republicans to intervene in that fight because she found they could not prove an interest that would be impaired by nonenforcement of the witness requirement.

President Joe Biden and Vice President Kamala Harris prevailed over Trump and then-Vice President Mike Pence in the North Star State by a 52% to 45% margin in November on their road to the White House. Minnesota’s general election counted about 1.9 million absentee ballots, according to statistics from Simon’s office.

In his decision issued Monday, Tostrud found that “plaintiffs plausibly allege a certainly impending threat that an ongoing Covid-19 pandemic and Minnesota’s absentee-ballot witness requirements will combine to burden the right to vote,” namely for voters like plaintiff Isabel Bethke and others who do not live with someone qualified to serve as a witness for upcoming elections this fall.

The League of Women Voters was also able to plausibly claim that its core voter education and registration initiatives would be hampered relative to the fall 2021 elections by necessitating education and outreach specifically about the witness requirement, Tostrud said.

Although the judge was receptive to Republicans’ point that no one knows what the pandemic will look like down the road and that any future injury to the plaintiffs was conjectural, he found the as-applied claims plausible and pointed out that they do not need to be completely free of uncertainty.

“The law is better understood to require only that plaintiffs allege facts plausibly showing a certainly or impending risk of substantial harm, and the better conclusion is that they have,” Tostrud said.

However, the lawsuit’s two facial constitutional challenges– claiming that the requirement violates the First and 14th Amendments by unduly burdening the right to vote in general and denies equal protection to noncitizens in violation of the 14th Amendment– were dismissed by Tostrud.

The judge found the voting rights group’s claim that the witness requirement unfairly burdens Minnesota voters generally is undercut by the fact that they only “assert a facial challenge to the witness limits based on burdens tied to the peculiar circumstances of individual voters,” which is not broad enough to support the facial challenge.

Tostrud dismissed the equal protection claim on the grounds that the plaintiffs do not have standing to bring a broad constitutional challenge on behalf of third party noncitizens and that specific hindrance to voting for individuals was not proven.

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