Online voter registration in Minnesota

8/13/2019 Online voter registration in Minnesota

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STATE OF MINNESOTA DISTRICT COURT

RAMSEY COUNTY SECOND JUDICIAL DISTRICT

Case Type: Civil

Minnesota Voters Alliance, Minnesota

Majority, Minnesota House of RepresentativeSteve Drazkowski, Minnesota House of

Representative Ernie Leidiger, Minnesota

House of Representative Mary Franson andHouse of Representative Jim Newberger,

Petitioners,

v.

State of Minnesota and Secretary of State MarkRitchie, in his official capacity, or his

successor,

Respondents.

Court File No. 62-CV-13-7718

Judge John H. Guthmann

RESPONDENT SECRETARY OF

STATES MEMORANDUM OF

LAW IN OPPOSITION TO

PETITIONERS QUO

WARRANTO PETITION

INTRODUCTION

On September 26, 2013, Respondent Secretary of State Mark Ritchie (hereinafter the

Secretary) announced the creation of a new tool on the Office of Secretary of States website

that permits Minnesotans to submit their voter registration applications directly to the Office.

Petitioners have brought this action seeking to prevent Minnesota voters from accessing this

method of delivery. Petitioners also seek to nullify the registrations of eligible voters who have

already used the system to register to vote.

As an initial matter, the State of Minnesota is not a proper party. Petitioners also lack

standing to bring the instant action, so the Court lacks jurisdiction to consider the Petition. Even

if this Court has jurisdiction, the Petition fails because the challenged action is within the

Secretarys authority under Minnesota law, which permits the Secretary to accept voter

registration applications that are submitted electronically. Indeed, Minnesota has long accepted


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electronic voter registrations. Finally, the remedies sought by Petitioners greatly exceed those

permitted by a writ of quo warranto. The Court should deny Petitioners Petition for Writ of Quo

Warranto.

FACTS

Minnesotans have a constitutionally protected right to vote. The Minnesota Constitution

provides that [e]very person 18 years of age or more who has been a citizen of the United States

for three months and who has resided in the precinct for 30 days next preceding an election shall

be entitled to vote in that precinct. Minn. Const. art. VII, 1; see also id.(listing persons not

entitled to vote, such as a person who has been convicted of treason or felony, unless restored to

civil rights). See alsoU.S. Const. amends. XV, XIX, XXVI; Minn. Stat. 201.014 ([A]n

individual who meets the following requirements at the time of an election is eligible to

vote . . . (a) be 18 years of age or older; (b) be a citizen of the United States; and (c) maintain

residence in Minnesota for 20 days immediately preceding the election.).

Registration is not required by either the State or federal Constitution. Id. Minnesota

statutes, however, impose registration as a procedural prerequisite for exercising the franchise.

Minn. Stat. 201.018, subd. 2 (An eligible voter must register in a manner specified by

section 201.054, in order to vote in any primary, special primary, general, school district, or

special election held in the county.).

A. Voter Registration in Minnesota.Prospective Minnesota voters register to vote by complying with the application

requirements set forth in Minnesota law. Minn. Stat. 201.018; 201.054, subd. 1; 201.061,

subds. 1 and 3. The voter registration application is required to include information such as the

voters name, address, and date of birth. Minn. Stat. 201.071, subd. 1. Typically, the

application will include either a current and valid Minnesota drivers license number or state


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identification number, or, if a voter has neither, the last four digits of the voters Social Security

number. Id. The application also must include a certification of voter eligibility and the

voters signature. Id.

Under state law, a registration application meeting the above requirements cannot be

deemed deficient. Minn. Stat. 201.071, subd. 3. Furthermore, [n]o eligible voter may be

prevented from voting unless the voters registration application is deficient or the voter is duly

and successfully challenged in accordance with section 201.195 or 204C.12. Id. These

referenced provisions permit challenges solely based on a voters residence or eligibility. See

Minn. Stat. 201.195, subd. 1; 204C.12, subd. 1.

State law provides Minnesota voters with various mechanisms for completing and

submitting registration applications to election officials. Prospective voters, as well as current

voters who need to change their registration information, may complete and submit an

application. (See Minnesota Voter Registration Application, attached to Affidavit of Gary Poser

(hereinafter Poser Aff.) as Ex. A.)

Voters have traditionally completed applications either by (1) completing the application

at a state or county elections office; (2) mailing the application to an elections office; or

(3) filling out the application and giving it to a third-party agency, organization, or individual. In

the latter case, the third-party agency, organization, or individual then submits the application to

the relevant elections office. See, e.g., Minn. Stat. 201.061, subd. 1 (A state or local agency

or an individual that accepts completed voter registration applications from a voter must submit

the completed applications to the secretary of state or the appropriate county auditor within ten


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days after the applications are dated by the voter.).1 Indeed, every biennium, political

associations and non-partisan organizations, such as the League of Women Voters, distribute

thousands of registration applications to prospective Minnesota voters. (Poser Aff 11(a).) The

private organizations then collect the completed applications and submit them to state and local

election officials for entry into the statewide voter registration system. (Id.)

When paper applications are submitted to the Secretarys Office, they are sent to the

appropriate county for data entry and processing. The voters information is then manually

entered by the county into the Statewide Voter Registration System (SVRS) database. (Poser

Aff. 8; Minn. Stat. 201.021 - .022.)

In addition to paper applications, the Secretarys office has accepted electronically-

submitted voter registration applications since 2004. Individuals applying for a drivers license

through the Minnesota Department of Public Safety are permitted to elect to register at the same

time, and that information is submitted to the Secretarys Office electronically. Minn. Stat.

201.022, subd. 1(1), (4) (provid[ing] for electronic transfer of completed voter registration

applications from the Department of Public Safety to the secretary of state or the county

auditor); see also 2004 Minn. Laws ch. 293, art. 1, 1 (enacting these provisions of

section 201.022); Minn. Stat. 201.161 (Applicants for drivers licenses or identification cards

must be asked if they want to register to vote at the same time and that information must be

transmitted at least weekly by electronic means to the secretary of state.).

1See alsoMinn. Stat. 201.162 (requiring all state agencies or their agents to provide voter

registration services for employees and the public and stating that nonpartisan voter

registration assistance is part of the job of all appropriate agency employees); 201.054,subd. 3 (regulating compensation for individuals engaged in the solicitation, collection, or

acceptance of voter registration application from voters for submission to the secretary of state,

county auditor, or other local election official).


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When applying through the Department of Public Safety, individuals registering to vote

are not required to complete or sign a separate voter registration application. Id. Rather, they

may simply check a box and provide a signature in a dedicated portion of their drivers license

application. Id. The Department of Public Safety then transmits the necessary information

electronically to election officials. Id.

B. The Online Voter Registration System.

On September 26, 2013, the Secretarys Office announced the creation of an online

registration tool on the Offices website. (Poser Aff. 19; see also Affidavit of Mark Ritchie

(hereinafter Ritchie Aff.) 3.) The web tool offers current and prospective Minnesota voters

the opportunity to print a paper registration form or to use an online version. (SeePoser Aff.

Ex. B (online registration application).) The questions on each form are substantively identical;

however, to submit a registration electronically, a voter must provide both (1) a valid email

address and (2) a Minnesota-issued drivers license, Minnesota-issued identification card

number, or the last four digits of their Social Security number. (See id.). The applicant must

check a box verifying the accuracy of the information he or she is submitting under penalty of

law and sign the application by typing his or her name into the signature field on the application,

which indicates that the typed name is the voters legally binding signature. (Id.; see also Minn.

Stat. 325L.07)

If an online applicant fails to provide an email address, an identification number, or any

of the information required by law, the Web tool rejects the application and notifies the applicant

that he or she must provide all required information before submitting it. (Poser Aff. 16(a)-

(b).) Once the application has been completed, the software immediately encrypts and saves the

applicants data. (Id. at 16(c).) The electronic Web service then uses a firewall to retrieve,

transmit, and process the data in a secure fashion. (Id.)


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Once the application data is behind the firewall, it undergoes an automated security check

that includes a comparison to records in (1) the SVRS database, (2) the databases maintained by

the Driver and Vehicle Services (DVS) division of the Minnesota Department of Public Safety,

or (3) the database maintained by the federal Social Security Administration. (Poser Aff. 18.)

Any application that fails to find a match in the drivers license, state identification card, and

Social Security processes detailed above is automatically rejected. (Id. at 18(d).) The

applicant is sent an e-mail message informing him or her that the application cannot be processed

and that he or she may resubmit the application either online or on paper. (Id.) If accepted, the

applicants data is treated like any other electronic voter registration data received by the Office

and is queued or loaded for the appropriate county for processing. (Id.at 18(a)-(c).)

C. Verification and Use of Electronically-Stored Voter Registration

Information.

Regardless of the method by which a voters information arrives at the county elections

office, it is stored in electronic format in the SVRS database. Minn. Stat. 201.021-.022. The

SVRS provides a means for the necessary sharing of registration information between

appropriate state and county officials to occur electronically. Minn. Stat. 201.022. The system

is also used to coordinate with information contained in other state and federal databases to

ensure consistency. Id. Paper applications, whether delivered by mail, in person, or by a third

party, are manually entered by local election officials in the county where the voter resides.

(Poser Aff. 8.) Information that the Office of Secretary of State receives electronically,

whether from the Department of Public Safety or the Offices website, is placed into the

appropriate countys electronic pending-applications queue for processing in the SVRS. (Poser

Aff. 10, 18(a)-(c).)


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Once the registration application data has been entered into the SVRS, it is subjected to

ongoing verification processes. The registration data in the SVRS is continually compared with

data in other government databases to ensure the accuracy and completeness of the registration

data. (Poser Aff. 24-25.) These verification procedures ferret out typographical errors and

other similar mistakes. (Poser Aff. 26(a)); Minn. Stat. 201.1615 (procedure verif[ies] the

accuracy of the information provided on applications for voter registrations). See also Minn.

Stat. 204C.12 (setting forth challenge process, under which voters whose SVRS records have

been flagged as challenged are required to provide additional information under oath before

being allowed to vote). Finally, the procedures serve a law-enforcement function, allowing for

the prosecution of persons who have falsely certified on election documents that, for example,

they are not serving felony sentences. (Poser Aff. 26(b)); Minn. Stat. 201.157 (providing that

Secretary shall notify county auditors upon learning that persons under felony sentences appear

to have illegally registered or voted).)

D. Online Registration Does Not Change Voter Registration Procedures,

Except To Make Registration More Accessible.

The verification processes performed by the Secretary of State and county and local

election officials do not change depending on the manner in which voters provide their

registration information to election officials. On the contrary, whether submitted in paper or

electronic form, each voters registration information is processed or entered into the SVRS, and

undergoes the various verification processes. Electronic submissions typically have a lower

error rate than hand-written paper applications, which must be read and entered manually by

clerks. (Poser Aff. 20.) During the verification processes noted above, this lower error rate

yields significantly fewer false positives or missed matchesthat is, registrations that

appear to contain invalid information or fail to correlate with records in other government


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databases as the result of simple typographical errors, illegible handwriting, or other human

mistakes. (Id. at 28.)

Similar electronic voter registration efforts in other states have yielded an increase in

registration, as well as improved the reliability of the information contained in voter registration

databases. (Poser Aff. 21.) In addition, permitting electronic submissions increases the

efficacy and reduces the cost of the registration system, both for Minnesota voters and for state

and county election officials. (Id. at 22.) Since the websites launch, at least 2,225 voters

statewide have chosen to submit online applications. (Id. at 23.) Of these applications, at

least 625 are new registrations. (Id.) The remainder are either changes or updates to information

on current voters, or are currently unprocessed. (Id.)

ARGUMENT

I. QUO WARRANTO IS AN EXTRAORDINARY AND LIMITED REMEDY.

The writ of quo warranto is an ancient common law writ that has enjoyed a unique and

varied history in the State of Minnesota. Rice v. Connolly, 488 N.W.2d 241, 243 (Minn. 1992).

The Minnesota Supreme Court has described the modern use of the writ as a judicial proceeding

to correct the usurpation, misuser, or nonuser of a public office or corporate franchise. State

ex rel. Danielson v. Village of Mound, 48 N.W.2d 855, 863 (Minn. 1951).2 The remedy of quo

warranto applies only to an ongoing usurpation, misuser, or nonuser of power; it is not available

to challenge government conduct that is pending or has been completed. See, e.g., id. at 864;

State ex rel. Lommen v. Gravlin, 295 N.W. 654, 655 (Minn. 1941).

2 The Minnesota Supreme Court has defined usurpation as the unauthorized arbitrary

assumption and exercise of power, misuser as a use unlawfully in excess of, or varying from,

ones right, and nonuser as a failure to use or exercise any right or privilege. Danielson, 48

N.W.2d at 863.


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The writ of quo warranto is an extraordinary remedy that rests in the sound discretion of

the court. Rice, 488 N.W.2d at 244; Danielson, 48 N.W.2d at 861. See also State ex rel.

Burnquist v. Village of North Pole, 6 N.W.2d 458, 460 (Minn. 1942) (recognizing the writ of quo

warranto is an extraordinary legal remedy). The writ is an equitable remedy that is rarely

invoked by the courts. Rice, 488 N.W.2d at 244. Indeed, the Supreme Court has exercised its

discretion in favor of issuing the writ infrequently and with considerable caution. Id.3

II. THE PETITION IS NOT JUSTICIABLE.

The Petition is not justiciable because Petitioners lack standing to seek quo warranto

relief, and any individualized claim for relief is not ripe.

Standing is a fundamental jurisdictional requirement. Annandale Advocate v. City of

Annandale, 435 N.W.2d 24, 27 (Minn. 1989). In order to establish standing, Petitioners must

show that their claimed injury is personal, particularized, concrete, and otherwise judicially

cognizable. Conant v. Robins, Kaplan, Miller & Ciresi, L.L.P., 603 N.W.2d 143, 150 (Minn.

App. 1999). Petitioners standing must be based on an injury that is distinct from that of the

general public. Channel 10, Inc. v. Indep. Sch. Dist. No. 709, 215 N.W.2d 814, 820 (Minn.

1974). In other words, the claimed injury must be one that is special or peculiar and different

from damage or injury sustained by the general public. Id.; see also Conant, 603 N.W.2d at

3 Although Petitioners lack of standing is dispositive, the State of Minnesota is not a proper

party to this Petition. See Travis v. Reno, 163 F.3d 1000, 1007 (7th Cir. 1998) ([T]he proper

defendant is the person whose actions cause injury, and that does not include the overarchinggovernment entity such as a United States or State of Minnesota); Quinones v. City of Evanston,

Illinois, 58 F.3d 275, 277 (7th Cir. 1995) (same); Marks v. United States Congress, 285 Fed.

Appx. 762, 763 (D.C. Cir. Jul 25, 2008) (same). Indeed, seeking injunctive relief against the

State of Minnesota begs the question of which of the many actors comprising state governmentis to be held accountable. Finn v. Rendell, 990 A.2d 100, 106 (Pa. Commw. Ct. 2010).

Petitioners have identified a specific actorthe Secretary of Stateand the State of Minnesota

should be dismissed as an improper party.


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Petitioners Drazkowski, Leidiger, Franson and Newbergers claim to legislator standing

likewise fails. Legislator standing exists only where the legislator can demonstrate a concrete,

personal, particularized injury that differs from the interests of his or her house. Conant, 603

N.W.2d at 150. Injury that is institutionalnamely, the diminution of legislative powerdoes

not provide the personal, particularized harm that supports legislative standing. Id. (citing with

approval authority stating it is untenable to argue legislative standing exists based on

deprivation of legislators right to participate and vote on legislation in a manner defined by the

Constitution). While vote nullification is a sufficiently concrete and personal injury to confer

standing on a legislator, vote nullification has been construed to stand at most, for the

proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific

legislative act have standing to sue if that legislative action goes into effect (or does not go into

effect) on the ground that their votes have been completely nullified. Rukavina v. Pawlenty,

684 N.W.2d 525, 532 (Minn. App. 2004) (quoting Conant, 603 N.W.2d at 150). Petitioners

claim, based only upon an argument that the Legislature, rather than the Secretary, should

address online voting, does not raise the issue of vote nullification. As a result, it is insufficient

to establish legislator standing.

Petitioners Representatives Drazkowski, Leidiger, Franson and Newberger also cannot

establish a justiciable controversy based upon their status as potential future candidates. To

establish the necessary injury-in-fact for standing, a litigant must demonstrate a harm that is both

concrete and actual or imminent, not conjectural or hypothetical. Whitmore v. Arkansas,

495 U.S. 149, 155 (1990) (quotation and citation omitted); Twin Ports Convalescent, Inc. v.

Minnesota State Bd. of Health, 257 N.W.2d 343, 346 (Minn. 1977). In a quo warranto petition,

the requisite justiciability does not exist if the litigant seeks declarations upon remote

contingencies or as to matters where the plaintiffs interest is merely contingent upon the


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happening of some event in the future. State ex rel. Sviggum v. Hanson, 732 N.W.2d 312, 322

(Minn. App. 2007) (quotation omitted). Rather, the litigant must have sustained or be in

immediate danger of sustaining some direct injury in order to establish standing. Rukavina, 684

N.W.2d at 531.

Moreover, in order for this Court to exercise jurisdiction, Petitioners must show that there

is a ripe controversy. McCaughtry v. City of Red Wing, 831 N.W.2d 518, 523 (Minn. 2013)

(recognizing that ripeness must be established before a Minnesota court has jurisdiction to issue

a declaratory judgment regarding constitutionality). A claim is not ripe if it is dependent on

events that may or may not occur in the future. Minn. Pub. Utils. Commn v. F.C.C., 483 F.3d

570, 582 (8th Cir. 2007) (recognizing that [a] claim is not ripe for adjudication if it rests upon

contingent future events that may not occur as anticipated, or indeed may not occur at all)

(quoting Texas v. United States, 523 U.S. 296, 300 (1998) (finding claim regarding sanctions

was not ripe since we have no idea whether or when such a sanction will be ordered)).

Petitioners assert that they expect[ ] to run for re-election (Pet. 5-7), will face

election contests in seeking reelection (Pet. 43), and may be harmed by a hypothetical future

election decided by non-registered persons (Pet. 44). However, the next election will not

occur until, at the earliest, the August 2014 state primary. Even assuming Petitioners will run for

re-election, and someone will run against them, any number of intervening events could occur

before the 2014 election cycle. Indeed, the Legislature might enact legislation regarding

electronic registration that will address Petitioners concerns. Because Petitioners claims as

potential candidates depend on contingent future events that may never occur, their claims are

not justiciable.


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II. SECRETARY RITCHIE IS AUTHORIZED TO PERMIT AND FACILITATE ONLINE

REGISTRATION.

The Secretary of State has the authority and discretion to permit Minnesota voters to

submit their voter registration applications to his Office by electronic means. Petitioners

selective reading of Minnesotas voter registration statutes is inconsistent with the States

election law and the Uniform Electronic Transactions Act (UETA). Petitioners also ignore the

fact that Minnesota Secretaries of State have lawfully accepted registration applications

submitted either electronically or by third parties for many years.

A. Secretary Ritchie Has Broad Constitutional And Statutory Authority AndDiscretion Over Elections In Minnesota.

The Secretary of State is a constitutional office in the executive branch. Minn. Const.

art. V. The Secretary is the chief election official in the state. Clark v. Pawlenty, 755 N.W.2d

293, 299 (Minn. 2008). As such, the Secretary is charged with numerous responsibilities to

facilitate and protect Minnesotans right to vote. For example, the Minnesota Constitution

specifically charges the Secretary with the responsibility to oversee election returns. Minn.

Const. art. VII, 8. The Secretary also has been granted broad statutory authority and discretion

over elections. Minnesota Statutes provide the Secretary the authority to sponsor or participate

in nonpartisan activities to promote voter participation in Minnesota elections and in efforts to

increase voter registration and voter turnout. Minn. Stat. 204B.27, subd. 6.

B. UETA Authorizes the Secretary to Accept Registrations in Electronic

Form.

State law also gives the Secretary the discretion to determine whether and to what extent

his office will accept electronic records and signatures, including voter registrations. The

Minnesota Legislature passed UETA in 2000 to facilitate and promote commerce and

governmental transactions by validating and authorizing the use of electronic records and


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electronic signatures. Minn. Stat. 325L.06. UETA defines electronic record to mean a

record created, generated, sent, communicated, received, or stored by electronic means.

Minn. Stat. 325L.02(g) (emphasis added).

At its core, UETA provides that:

(a) A record or signature may not be denied legal effect or enforceability solelybecause it is in electronic form.

(b) A contract may not be denied legal effect or enforceability solely because anelectronic record was used in its formation.

(c) If a law requires a record to be in writing, an electronic record satisfies thelaw.

(d) If a law requires a signature, an electronic signature satisfies the law.Minn. Stat. 325L.07.

The Legislature plainly intended UETA to apply to State government and its

subdivisions. See, e.g., Minn. Stat. 325L.02(i) (defining governmental agency to include

State executive, judicial, and legislative authorities and agencies), 325L.02(p) (defining

transaction broadly to include an action or set of actions . . . relating to the conduct of . . .

governmental affairs). UETA authorizes each governmental agency of this state to

determine whether, and the extent to which, it will create and retain electronic records and

convert written records to electronic records. Minn. Stat. 325L.17. UETA also gives the

creating agency the discretion to determine the manner and format for accepting electronic

records. Minn. Stat. 325L.18.

UETA directs the means by which agencies are to reconcile its provisions with existing

legal requirements. First, UETA explicitly exempts certain categories of documents, none of

which are applicable here. See Minn. Stat. 325L.03. In addition, UETA provides that where a

law other than [UETA] requires a record . . . to be sent, communicated, or transmitted by a

specific method, the restrictions in the other law apply. Minn. Stat. 325L.08(b) (emphasis


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added). However, any requirement under law other than this chapter to send, communicate, or

transmit a record by first-class mail, postage prepaid, or regular United States mail may be varied

by agreement to the extent permitted by the other law. Id.at (c)(2).

C. The Secretary Has Statutory Authority to Accept Electronic Voter

Registration Applications.

1. UETA applies because voter registration applications are notsubject to exclusive or mandatory delivery methods.

Minnesotas voter registration laws provide a number of different means by which voter

registrations may be completed and delivered to election officials. Because there is no

mandatory or exclusive means for delivery, the Secretary has the authority and discretion under

UETA to permit electronic delivery.

Minnesota Statutes section 201.061, subdivision 1, provides:

At any time except during the 20 days immediately preceding any regularly

scheduled election, an eligible voter or any individual who will be an eligiblevoter at the time of the next election mayregister to vote in the precinct in whichthe voter maintains residence by completing a voter registration application as

described in section 201.071, subdivision 1, and submitting it in person or by mailto the county auditor of that county or to the Secretary of States Office.

Minn. Stat. 201.061, subd. 1 (emphasis added). Based on this provision, Petitioners attempt to

avoid the provisions of UETA by arguing that the in person or by mail language above is

mandatory and exclusive. (Pet. 22.)

Petitioners argument ignores the plain language of section 201.061. A plain-language

reading reveals that the in person or by mail to the county auditor of that county or to the

Secretary of States Office language is permissive rather than mandatory. See Minn. Stat.

645.44, subds. 15 & 15a (when interpreting Minnesota statutes, [m]ay is permissive and

[m]ust is mandatory). For this reason alone, Minn. Stat. 201.061 cannot be read to


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preclude electronic delivery of voter registration applications, which is otherwise authorized by

UETA.

In addition, Chapter 201 as a whole demonstrates that the in person or by mail

language does not constitute a mandatory requirement. Minn. Stat. 645.16 (Every law shall

be construed, if possible, to give effect to all its provisions.); 645.17(1), (2) (indicating that

courts are to presume that the legislature does not intend a result that is absurd, impossible of

execution, or unreasonable, and that the legislature intends the entire statute to be effective and

certain).

Multiple means of submitting registration applications other than in person or by mail to

the county auditor of that county or to the Secretary of States Office are permissible under

Minnesota election law. For example, voter registration applications are frequently submitted

through third parties, such as state and local government agencies, political campaigns and

parties, and private entities such as the League of Women Voters. Minn. Stat. 201.061, subd. 1

(A state or local agency or an individual that accepts completed voter registration applications

from a voter must submit the completed applications to the secretary of state or the appropriate

county auditor within ten calendar days after the applications are dated by the voter.). See also,

e.g., Minn. Stat. 201.054, subd. 3 (further regulating private third-party submission); 201.162

(further regulating public third-party submission). Every election cycle, thousands of voters

submit registration applications by giving them to third parties for delivery. (Poser Aff. 11(b).)

Minnesota also has accepted registration data submitted to the Secretarys Office

electronically for nearly a decade. (Poser Aff. 10 (citing Minn. Stat. 201.022, .161).) These

registrations are based on information obtained in connection with drivers license and/or state

identification applications and are delivered to the Secretary electronically. See Minn. Stat.

201.161. In the past nine years, more than 500,000 Minnesotans have used the electronic


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motor voter process to register to vote or to update their voter registrations. (Poser Aff.

10(a).)

Finally, [n]o voter registration application is deficient and [n]o eligible voter may be

prevented from voting based simply upon the method of delivery. See Minn. Stat. 201.071,

subd. 3 (providing itemized list of specific requirements for a valid voter registration application,

but omitting any mention of method of delivery). The fact that Minnesota law considers an

otherwise valid registration effective regardless of the method of delivery further demonstrates

that the in person or by mail language of section 201.061 is neither mandatory nor exclusive.

These longstanding features of Minnesotas voter registration system demonstrate that

Minn. Stat. 201.061 does not carry the meaning that Petitioners assert.5 On the contrary, by its

plain language, and when read in the context of election laws as a whole, section 201.061,

subd. 1, does not contain an exclusive or mandatory list of the means by which voters may

submit their registration applications to election officials. Because section 201.061, subd. 1,

contains no require[ment that] a record . . . be sent, communicated, or transmitted by a specified

method, see Minn. Stat. 325L.08(b), (b)(ii), the Secretary possesses the discretion under

UETA to accept voter registrations delivered electronically.6

5Indeed, Minnesota law explicitly prohibits the interpretation advanced by Petitioners. SeePart

III-B,infra.

6Petitioners point to two election law provisions that make explicit reference to electronic use

connected to ballots and election resultsone permitting electronic transmission, Minn. Stat.

203B.225, and the other prohibiting it, Minn. Stat. 206.845. (Pet. at 30-31.) Contrary to

Petitioners assertion, these provisions stand only for the proposition that when the legislaturehas intended to pass mandates related to electronic recordswhether in support or againstit

has done so. No such mandates exist here. Since Minnesota law does not mandate exclusively

non-electronic delivery of voter registrations, UETA authorizes the Secretary to permit online

registration.


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2. Pursuant to UETA, any requirement of delivery by U.S. mailcontained in other law may be altered by agreement.

In defining delivery by mail, Minn. Stat. 201.061 explains that mail registration is

defined as a voter registration application delivered to the secretary of state, county auditor, or

municipal clerk by the United States Postal Service or a commercial carrier.7 Id. Even if the

in person or by mail phrase could be deemed a requirement, UETA permits any requirement

under law other than this chapter to send, communicate, or transmit a record by first-class mail,

postage prepaid, or regular United States to be changed by agreement to allow an electronic

form of delivery. Minn. Stat. 325L.08(c)(2).

By creating a website, the Secretary has exercised his statutorily-provided discretion to

promote voter participation and increase voter registration, Minn. Stat. 204B.27, subd. 6, and

agreed to accept registration applications submitted using the prescribed electronic means.8

Minn. Stat. 325L.17 (providing that the government agency shall have discretion regarding

how to implement UETA). The website provides voters the option of printing a paper form or

using an electronic means of submission. Thus, voters choosing to use the website to submit

7 Contrary to Petitioners assertions, an internet provider does fit within the definition of a

commercial carrier. (Pet. 23.) The internet is accessible only because of commercial

services such as internet service providers (ISP) and internet networks. These services aretypically run by private companies, including Comcast, AT&T, Sprint, etc., that make profits by

transferring electronic data on behalf of customers in exchange for a fee. Thus, just as FedEx is

a commercial entity that carries boxes on the Interstate Highway System, internet providers quiteliterally are commercial entities that carry customer data on the internet.

8 The Secretary is explicitly authorized to create and maintain a website. See Minn. Stat.

10.60, subd. 2 (stating the purpose of a public website is to facilitate access to public services

and information related to the responsibilities or function of the state agency); subds. 3(b) &4(d) (specifically referring to the election-related Web site maintained by the Office of the

Secretary of State).


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their materials are likewise agreeing to electronic delivery. This satisfies the requirements of

Minn. Stat. 325L.08(c)(2).9

In sum, Minnesota law gives the Secretary the authority to accept voter registration

applications that are submitted electronically. Because the Secretarys authority is based on the

Minnesota Constitution and on statutes duly enacted by the Legislature, no separation of powers

issues arise. For these reasons, the Court should not enjoin the Secretary of State from

continuing online voter registration.

III. PETITIONERS CANNOT OBTAIN THE RELIEF THEY SEEK.

Petitioners ask this Court to nullify the registrations of individuals who used the

Secretarys website to deliver their registration applications electronically. Such relief is neither

appropriate nor permissible in a quo warranto proceeding. In addition, Petitioners request

would be unlawful under Minnesota Statutes and the Minnesota Constitution.

A. Quo Warranto Does Not Provide For Invalidation Of Previously-SubmittedVoter Registration Applications.

Quo warranto does not provide for the relief Petitioners request, because the writ does not

apply to government conduct that is pending or has been completed. State ex rel. Danielson v.

Village of Mound, 48 N.W.2d 855, 864 (Minn. 1951) ([u]ntil an actual usurpation has occurred,

the remedy of quo warranto has no application); State ex rel. Lommen v. Gravlin, 295 N.W.

654, 655 (Minn. 1941) ([T]he writ of quo warranto is not allowable as preventative of, or

remedy for, official misconduct and cannot be employed to test the legality of official action of

public . . . officers.).

9The fact that voter registrations cannot be invalidated based upon the method of delivery, see

Minn. Stat. 201.071, subd. 3 and Part III-B, infra, also supports the application of UETAs

provision that any requirement to transmit voter registrations by mail can be varied by agreement

between the voter and the Secretary.


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number or Minnesota state identification number, the last four digits of the voters Social

Security Number, if the voter has been issued a Social Security Number, prior registration, if

any, and signature. Id. Because election officials are not permitted to prevent voting based on

the method by which the registration application was delivered, the relief Petitioners seek is

prohibited by law.

Second, section 201.071, subdivision 3, permits election officials to prohibit a voter from

voting where a successful challenge has been brought pursuant to section 201.195 or

section 204C.12. Id. Both of these provisions relate to the manner in which a registered voter

may challenge another voters right to vote. Challenges under both provisions are limited,

however, to objections as to eligibility and/or residence. Minn. Stat. 201.195, subd. 1;

204C.12, subds. 1-3. Neither statute permits a challenge based on the method by which the voter

submitted his or her registration application to election officials.10

Finally, invalidating an eligible voters vote based on his or her reliance on a specific

delivery method offered by the Secretary of State could violate the fundamental constitutional

right to vote. See, e.g., Malone v. Tison, 282 S.E.2d 84, 89 (Ga. 1981) (declining to invalidate

registrations which, due to registrar error, were submitted in locations not compliant with

mandatory registration laws and considering that such action may be unconstitutional); Huffaker

v. Edington, 163 P. 793, 794-95 (Id. 1917) (refusing to deprive citizens of their right to vote

based on registration irregularities caused when voters relied on election officials and

irregularities were caused by election officials who failed to comply with regulations directed at

the officials). The Court should not grant such unconstitutional relief. See, e.g., Minn. Stat.

10Petitioners make no argument that the Secretarys online registration page enables ineligible

persons to vote.


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645.17(3) (Minnesota courts presume that the legislature does not intend to violate the

Constitution of the United States or of this state[.]).

CONCLUSION

For the reasons set forth above, Secretary of State Mark Ritchie respectfully requests the

Court to deny Petitioners Petition for Writ of Quo Warranto.

Dated: December 4, 2013. OFFICE OF THE ATTORNEY GENERALState of Minnesota

/s/ Alethea M. HuyserALETHEA M. HUYSER

Assistant Attorney GeneralAtty. Reg. No. 0389270

KRISTYN ANDERSONAssistant Attorney General

Atty. Reg. No. 0267752

NATHAN J. HARTSHORN

Assistant Attorney GeneralAtty. Reg. No. 0320602

445 Minnesota Street, Suite 1100

St. Paul, Minnesota 55101-2128

(651) 757-1243 (Voice)(651) 296-1410 (TTY)

ATTORNEYS FOR RESPONDENTS

SECRETARY OF STATE MARK RITCHIE

AND STATE OF MINNESOTA

Documents

Online voter registration in Minnesota