New report exposes weakness in Minnesota election law

Why is our secretary of state hiding the 2020 voter lists?

One of the many ways our nation remains divided is over the integrity of our elections. One side has serious doubts about who’s voting and, equally important, who’s counting the votes. The other side calls such doubts a “Big Lie” and spends a lot of time and energy trying to silence any claims of voter fraud. Never mind that successful voter fraud, by definition, goes undetected.

In Minnesota the matter is made worse because Secretary of State Steve Simon refuses to release challenged voter lists, despite widespread support for stronger voting laws. Our February Thinking Minnesota poll found that 69 percent of Minnesotans favor a photo ID requirement at the polls while just 28 percent are opposed. The same poll showed that one-third of respondents lack confidence in the integrity of Minnesota elections, a surprising number in a state that leads the nation every year in voter turnout. But you wouldn’t know it based on Simon’s rhetoric. He called the 2020 election a “tremendous success” and dismissed claims to the contrary as “foolish and irresponsible” and “unworthy of attention.”

Following the 2020 election, Center of the American Experiment worked with the Minnesota Voters Alliance on a research project we hope will shine some light on the weakest part of Minnesota’s election system, election day registration. Call it the American Experiment Voter Integrity Experiment.

Voting history

Minnesota was one of the first states in the nation to adopt the practice of election day registration in 1974 and support among the electorate remains strong. In fact, 353,179 Minnesotans registered to vote on Election Day 2016. That number dropped during the pandemic in 2020 to 259,742, but only because so many voters chose to mail in their ballots early.

Same-day registration is not unique in our country — 20 states offer some form of the practice each November. What is unique to Minnesota is the absence of a provisional ballot procedure to verify that those registering on Election Day are actually eligible to vote. In nearly all states where voters can’t immediately prove they are legal voters, a provisional ballot is employed. Election officials use the days between the election and the official canvass of results to confirm the eligibility of the voters who couldn’t demonstrate their eligibility on election day. If the voter is deemed eligible, the ballot is counted and included in the totals.

All but three of the states with election day registration also have a provisional ballot process in place to prevent voter fraud. In New Hampshire, election officials take a photo of new voters at the poll and have them sign an affidavit swearing they are eligible to vote. Idaho is the only state (besides Minnesota) without a provisional ballot procedure to accompany their election day registration. Idaho does have a photo ID requirement for all voters at the polls.

Vouching

Another voting irregularity in Minnesota is the ability of a neighbor or friend to “vouch” for the residency of an unregistered voter in their precinct. An eligible voter can vouch for up to eight other residents each Election Day, simply by signing an oath “swearing to their residence” in the precinct. Vouching is used to register voters who otherwise can’t demonstrate to election judges where they live, using a driver’s license, student ID or one of the many documents on this list from Minnesota Rules governing elections:

…an original bill, including account statements and start-of-service notification, for telephone, television, or Internet provider services, regardless of how those telephone, television, or Internet provider services are delivered; gas, electric, solid waste, water, or sewer services; credit card or banking services; or rent or mortgage payments.

There is a history of abuse of the vouching process in Minnesota:

• In the 2010 election, a group representing Students Organizing for America, an outgrowth of President Barack Obama’s political organization, was accused of illegally vouching for students on the University of Minnesota campus. Students were meeting outside the polling location and dividing into groups after being assigned to a “voucher.”
• In the 2012 election, two women were accused of voter fraud after suspicions were raised by an election judge because a counselor from a drug treatment program brought 15 patients to the polls and vouched for their residency.

In the 2016 election, six percent of election day registrants in Minnesota used vouching to establish their eligibility to vote, equaling 20,000 voters.

Registrations treated differently

Another flaw in Minnesota’s voter registration process is how early voters are treated differently from election day voters. If you register to vote during early voting (either by mail or in person), your application is vetted through the state system to verify eligibility. Your name and address are verified against the Department of Public Safety database or the Social Security database to determine eligibility. If there is a problem with your registration, the county auditor must notify you 20 days before the election and give you a chance to make corrections. According to the rules, “The applicant must be allowed to vote only after completing the registration or after registering or updating their registration using current information for the applicant.”

On the other hand, if a voter walks into a polling location on Election Day and registers to vote (using documents or through vouching), any verification of their eligibility is done only after the election. Their vote is counted.

The county auditor runs the same verification using the Department of Public Safety database and the Social Security database. But if a problem is discovered, it is too late, because the vote has already been counted. This is a serious flaw in Minnesota’s verification process and the impetus for adding a provisional balloting provision to our election system.

The Office of Legislative Auditor found serious problems with election day registration in Minnesota in its 2018 program evaluation report. Among that report’s findings:

• Depending on how and when persons register to vote, their identity and eligibility to vote may not be checked against other data sources until after they have voted.
• Minnesota allows voters to register on Election Day, which provides access to voting but may also allow ineligible persons to register and vote.
• County staff create and update records of registered voters in the Statewide Voter Registration System (SVRS), Minnesota’s centralized database of registered voters, but a voter’s information may be inaccurate on Election Day.

The legislative auditors exposed the weakness of the SVRS. Their report found more than 26,000 persons marked “challenged” in the SVRS from the 2016 general election. Challenged voters registered (and voted) on Election Day in 2016 but had their eligibility status questioned after the fact by county election officials. It’s bad enough these voters were able to vote in 2016. It is even worse that they were still on a challenge list two years later and allowed to vote again.

Postal Verification Cards (PVCs)

A voter lands on the challenged list after county election officials attempt to verify their eligibility. One of the tools county officials use is the mailing of a post card to the address the voter used to register. If the post card comes back as undeliverable, that raises a red flag about that voter’s eligibility and is supposed to trigger some investigation. From the legislative audit report:

County election staff mail postal verification cards (PVCs) to confirm the addresses of new and updated registrants. The postal service may not send the PVC to a forwarding address; it may be delivered only to the name and address on the card. If the postal service returns any cards to the county election office as undeliverable, county officials must resolve the reasons for their return. A postcard could be returned for many reasons, ranging from inaccurate data entry to fraudulent registration.

The rules are even more explicit for election day registrations:

The county auditor must send notices to election day registrants whose information cannot be verified and request that the voters contact the registration office. If the voter does not provide information that resolves the discrepancy so that the voter registration application can be verified, the county auditor must challenge the voter in the statewide voter registration system and may refer the matter to the county attorney.

The legislative auditors updated their program audit in 2019 and criticized the method counties are using to send postcards:

Counties Not Complying with Poorly Articulated Post-Election Sampling Requirements. The requirement for counties to send address verification postcards to a random sample of election day registrants within ten days after an election, as currently implemented, does not serve a useful purpose. A sample size of 3 percent of election day registrants, set by the Office of the Secretary of State (OSS) through rulemaking, is not large enough to yield useful data in counties with small populations. Moreover, county officials we interviewed did not send the postcards to a random sample of registrants, and several counties did not complete the task within the required ten days.

According to the legislative auditor, counties are not correctly following the postal verification system for checking election day registrants that auditors described as “not serving a useful purpose.”

Lawsuit against Steve Simon

Our friends at the Minnesota Voters Alliance (MVA) read the 2018 Legislative Auditor’s report with interest and asked Secretary of State Steve Simon for the current list of challenged voters in the SVRS. To identify voter fraud in Minnesota, such as felons voting before they were eligible or people voting from bogus addresses, the challenged list would be the first place to look.

Simon refused to share the list with MVA, claiming it was non-public data under the Minnesota Data Practices Act. MVA sued Simon in District Court saying his interpretation of the Data Practices Act was too narrow and not supported by the law.

The case centered on legislative intent regarding this data. Normally, all data is considered public unless the legislature specifically deems it non-public. In the case of election data, the legislature has been very specific about when election data is non-public, such as to protect the identity of people who fear for their safety because of domestic violence, sexual assault or stalking.

Simon hung onto one important word in the statue that he argued allowed him to deny the MVA’s request: may. The law says:

The secretary of state may provide copies of the public information lists and other information from the statewide registration system…

Simon argued in the press that he was simply protecting the privacy of Minnesota voters. But that argument doesn’t make much sense when you consider how much data about voters is already public. A voter’s name, address, phone number (if they provide it), email address and age are already public. All Simon was protecting was which voters appeared on challenge lists from county election officials.

Minnesota Voters Alliance won in District Court and their victory was unanimously affirmed on appeal by the Minnesota Court of Appeals. Slam dunk. Until Simon appealed once again, to the Minnesota Supreme Court. A majority consisting of judges appointed by Mark Dayton reversed the lower court decisions, hanging their hat on the word “may.” Simon may make the data public, but he doesn’t have to.

What does Simon know about the challenged voter data that we don’t? Was the legislative auditor’s office on to something with its program evaluations? Why won’t Simon release the data?

The American Experiment Voter Integrity Experiment

Since Secretary Simon refuses to release the challenged voter lists, American Experiment decided to conduct its own mailing of postal verification cards following the 2020 election to see how many would come back as undeliverable. Our experiment was somewhat delayed because we did not have access to the list of who registered and voted on Election Day until the counties and secretary of state made that data public a few months after the election. And although undeliverable cards do not necessarily imply outright election fraud, the percentage of undeliverable mail and returned mail surprised us.

There were 20,056 voters who registered to vote on Election Day in 2020 in the city of Minneapolis. We mailed post cards to a little more than half of them (11,857) as soon as we had access to the data in February 2021.

The main purpose of the cards was to see how many came back as undeliverable, so the content was not important. Nevertheless, to expand our experiment, we created a website called www.whydidivote.com and used the cards to encourage people to tell us why they voted. Around 30 people actually went to the website and filled out a quick survey explaining why they voted. But again, the main purpose of the experiment was to see how many cards would be returned. Before the mailing even got to the post office, the mail house software rejected 92 of the addresses as undeliverable. Some addresses were brand new construction not even in the database yet, some were due to data entry errors (street instead of avenue), some had street numbers that didn’t exist (425 8th St SE), and one appears to be in Linden Hills Park (4236 York Ave S).

Of the 11,765 cards that made it through the mail house, 887 were returned as undeliverable. That is, there is no such person with that name living at that address.

The undeliverable and returned cards do not represent 979 fraudulent votes. But some addresses raise questions merit further investigation.

Many of the returned cards came from student housing on the University of Minnesota and Augsburg University campuses. It’s understandable that college students move around a lot, but these students voted in November 2020 and had already moved by February 2021. Did they all graduate? Did the schools shut down in early 2021 because of COVID and send kids home? Seems unlikely. Some examples of returned cards from student housing:

• Eighteen cards were returned from 920 Delaware Street SE, known as Argyle House near the U of M campus.
• Fifty-seven cards were returned from 2508 Delaware Street SE, known as the Quad on Delaware near the U of M campus.
• Thirty-six cards were returned from 311 Harvard Street SE, known as the Hub Apartments near the U of M campus.
• Twenty cards were returned from 616 Washington Ave SE, known as the Station on Washington Ave near the U of M campus.
• Thirty-six cards were returned from 900 Washington Ave SE, known as Dinnaken House near the U of M campus.
• Twenty-five cards were returned from 1016 Washington Ave SE, known as the WaHu Apartments near the U of M campus.
• Twenty-six cards were returned from 800 22^nd Ave S, known as Urness Hall on the campus of Augsburg University.

College campuses are hotbeds of political activism, and state and local campaigns spend a lot of time and energy recruiting students to vote and volunteer. Joe Biden received 81 percent of the vote in Minneapolis Precinct 2-10, where many of these addresses are located.

We also had three cards returned from the Days Hotel on the U of M campus, one from the Millennium Hotel in downtown Minneapolis and one from a Minnesota Teen Challenge treatment facility. Not illegal on its face, but certainly worth investigating.

It’s reasonable to assume some of these voters moved between the time they registered to vote and the mailing of our post card. But if you apply our eight percent return rate against the 259,742 voters who registered statewide to vote on Election Day 2020, it would represent 20,779 registrations that are at least questionable and may in fact represent voter fraud. (There are, of course, numerous other ways of committing voter fraud that are not involved in this experiment.)

Secretary Simon could easily confirm or dispute these findings and conclusions by releasing the data he has from the 2020 election regarding postal verification cards and challenged voters.

The bottom line is this list deserves more scrutiny and Secretary Simon should show us the data on challenged ballots. Counties should make public the results of their post card mailings so groups like the Minnesota Voters Alliance and the press can investigate — although, of course, expecting the Minnesota press to investigate potential voter fraud might be a stretch.

Pressure needs to build on the secretary of state to release the data, or give a meaningful explanation of why he won’t. The privacy argument worked with Mark Dayton’s Supreme Court appointees and a sympathetic and lazy press, but it shouldn’t work with legislators providing oversight. The following recommendations would strengthen Minnesota’s voting system and improve the integrity of our elections, something that should be a top priority, given that 32 percent of Minnesotans have expressed a lack of confidence in the current system.

• The verification process for election day registration should be the same as registration before Election Day. Voters should not be allowed to vote until their eligibility has been determined.
• Minnesota should add a provisional ballot process to election law, joining the other states that use provisional balloting to complement election day registration.
• Minnesota should add a photo ID requirement to election law.
• Secretary of State Steve Simon should immediately release the challenged voter data requested by the Minnesota Voters Alliance.
• The Minnesota Legislature should hold Secretary Simon accountable in public hearings for not releasing the challenged voter data.
• The Minnesota Legislature and Secretary of State should fully implement the recommendations of the Legislative Auditor from the 2018 and 2019 program evaluations of election day registration. 

The 2018 report from the Legislative Auditor, our post card experiment and Steve Simon’s inexplicable refusal to release the data all lead to the same conclusion: Minnesota’s system of election day registration without provisional ballots is the weakest in the nation and should be strengthened. Voters need to understand that Minnesota’s current electoral system is the type of system one would design if the objective were to facilitate election fraud, not the kind of system one would design to achieve ballot integrity.

Bill Walsh is the Director of Communications at Center of the American Experiment. Prior to joining American Experiment, he worked for 25 years in a variety of political and communications positions in the Minnesota House, Senate and Republican Party. He was also communications director in two state agencies during Gov. Tim Pawlenty’s administration.

A version of this report will also appear in the summer 2021 issue of Thinking Minnesota magazine.