Memorandum of Secretary of State Mark Ritchie in Opposition to Petition (2)

8/8/2019 Memorandum of Secretary of State Mark Ritchie in Opposition to Petition (2)

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No. A10-2022

ST ATE OF MTNESOT AIN SUPREME COURT

In re Petition regarding 2010 Gubernatorial Election

MEMORADUM OF SECRETARY OF STATE MARK RITCHIEIN OPPOSITION TO PETITION

BRIGGS AND MORGAN, P.A.Sam Hanson (#0041051)Diane B. Bratvold (#018696X)Neal T. Buethe (#166030)2200 IDS Center80 South Eighth StreetMinneapolis, Minnesota 55402-2157(612) 977-8400

TRIMBLE & ASSOCIATES, LTD.Tony P. Trimble (#122555)Matthew W. Haapoja (#268033)Suite 130, 10201 Wayzata BoulevardMinneapolis, Minnesota 55305(952) 797-7477

ATTORNEYS FOR PETITIONER

LORI SWANSONAttorney GeneralState of Minnesota

ALAN i. GILBERTSolicitor GeneralAtty. Reg. No. 0034678

KENNETH E. RASCHKE, JR.Assistant Attorney GeneralAtty. Reg. No. 0089643

445 Minnesota Street, Suite 1100S1. Paul, Minnesota 55101-2128(651) 757-1450 (Voice)(651) 296-1410 (TTY)

ATTORNEYS FOR SECRETARY OF

STATE MARK RITCHIE


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INTRODUCTION

Petitioner invokes this Court's original jurisdiction under Minn. Stat. 204B.44.

However, the petition does not establish a right to relief under that statute.

Section 204B.44 provides a mechanism for correction of certain "errors, omissions, and

wrongful acts" that have occurred or are about to occur in the context of an election. The

materials submitted by Petitioner do not establish any error, omission or wrongful act by

either the Minnesota Canvassing Board ("Board") or local election officials. Nor does

the petition demonstrate, or even allege, that the returns reported by any particular local

election judge or county canvassing board are inaccurate and need to be corrected. i

ARGUMENT

THE PETITION DOES NOT STATE A CLAIM UNDER MINN. STAT. 204B.44

Petitioner claims that certain local election judges improperly used the number of

election receipts issued, rather than the number of signatues on the election register, to

verify the number of ballots to be counted. This claim is based on the erroneous premise

that election judges may only determne the number of ballots to be counted by reference

to the number of voters who signed the roster. Petition at 19.

The petition inexplicably ignores Minn. R. 8200.9300, subp. 10 (2010) which

provides as follows:

i This Memorandum is submitted on behalf of Mark Ritchie in his capacity as theMinnesota Secretary of State in response to the Court's invitation.

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Voter's receipt.. The election judges shall determine the number of ballotsto be counted by adding the number of return envelopes from accepted

absentee ballots to the number of voter's receipts issued pursuant toMinnesota Statutes, section 204C 10, subdivision 2, or to the number of

names signed on the pollng place roster. The election jurisdiction mayrequire that the election judges number or initial each voter's receipt as it isissued.

(Emphasis added.) This rule has been in place since at least 1982. See 1 MCAR

2.1005; Affidavit of Gary Poser ("Poser Aff.") ir 9. It was promulgated pursuant to a

1981 amendment to section 204C.10. Act of May 4, 1981, ch. 92, 3, 1981 Minn. Laws

338-39. That statute provided for the use of "voter's receipts" in certain muncipalities in

lieu of the "voter's certificate" used in other jurisdictions. See Minn. Stat. 204C.1 0

(1982).

Section 204C.10 was amended in 1990 so that the voter's receipt replaced voter's

certificates for general use in all jurisdictions. See Act of May 3, 1990, ch. 585, 27,

1990 Minn. Laws 2221, Minn. Stat. 204C.10(c) (2008). Although Minnesota Statutes

section 204C.20, subdivision 1, continues to refer to voter's certificates that are no longer

in use, Rule 8700.9300, subpart 10, allows election judges to determne the number of

ballots to be counted by reference to either the number of voter's receipts or signatures on

the pollng place roster.

Indeed, the methodology reflected in the rule has been noted by Secretaries of

State since at least 2006, including the 2010 general election, in instrctional materials

provided to local election officials. Poser Aff., ir 19, Exh. B. The rule has the full force

and effect of law, (Minn. Stat. 14.38, subd. 1 (1982) and (2008), and to the extent there

is any ambiguity in the applicable law, the consistent interpretation of the Secretaries of

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State is entitled to deference. See, e.g., Manufacturing Hous. Inst. v. Petersen, 347

N.W.2d 238,242 (Minn. 1984).

Furthermore, Petitioner's supporting affidavits do not substantiate any claim that

the reported election results are inaccurate. In fact, the petition does not suggest any

reason why the use of voter receipts is more likely to generate errors than using the (now

obsolete) certificates, or' roster signatues.2 The reasonableness of Rule 8700.9300,

subpart 10, was confirmed as part of the rulemaking process. See Minn. Stat. 14.131,

14.14 (1982) (agency must establish reasonableness of prof erred rule).

The petition simply does not establish any error, omission or wrongful act in

connection with the recent election that is amenable to correction by an order of this

Court pursuant to Minn. Stat. 204B.44. See Coleman v. Ritchie, 762 N.W.2d 218

(Minn. 209) (allowing in section 204B.44 proceeding for correction of obvious errors if

parties agree). Cf Application of Andersen, 264 Minn. 257, 119 N.W.2d 1 (1962)

(allowing for the belated administrative correction of "obvious errors that could be

identified from the face of retus submitted to the respective canvassing boards); see

Hunt v. Hoffman, 125 Minn. 249,252, 146 N.W. 733, 734 (1914) (allowing for correction

2 The petition cites a 2009 Star Tribune aricle to misleadingly suggest that the issue

raised by Petitioner implicates a discrepancy of approximately 40,000 votes. (Petition at14). The article simply reflects an alleged comment of Secretary of State Ritchieregarding the Statewide Voter Registration System (SVRS). (Id.) The article, the allegedremarks, and the SVRS are totally irrelevant to the instant Petition. The SVRS is a voterregistration database that is continually updated throughout the year. As a result, anyalleged discrepancy between SVRS counts and the number of votes cast in a particularelection is unrelated to the issues raised in the petition.

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of palpable mistake which was clear from the face of retus). Accordingly, there is no

basis to grant Petitioner's requested relief.

The Board should be allowed to proceed with its canvassing function in the

manner provided by law and prepare a report based upon the canvass of certified copies

of the several county canvassing board reports. See Minn. Stat. 204C.33, subd.3

(2008). The Board's other statutory function, conducting administrative ballot recounts

as necessary, is similarly prescribed by law. See Minn. Stat. 204C.35, subd.3 as

amended by Act of April 1, 2010, ch. 201, 45, 2010 Minn. Laws 192 (referring to use

of "summary statements certified by the election judges"). 3

3 It should also be noted that the recount provisions contained in Minn. R. ch. 8235 were

amended in 2010. As part of that ru1emaking proceeding, the Republican Party ofMinnesota proposed an addition to Rule 8235.0700 to provide for "a reconciliation"process. The Administrative Law Judge concured with the Secretary of State'sobservation that such a process is beyond the scope of a recount and therefore theproposal was not included as part of the amended rule. Poser Aff. ir 14, Exh. A at pp. 27-28.

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CONCLUSION

For the foregoing reasons, the Secretary of State submits that the Petition should

be denied so that his Office and the Board can proceed to perform their duties as

specified by statute.

Dated: November 19,2010 Respectfully submitted,

LORI SWANSONAttorney GeneralState of Minnesota

~LAN i. GILBERTSolicitor GeneralAtty. Reg. No. 0034678KENNETH E. RASCHKE, JR.Assistant Attorney GeneralAtty. Reg. No. 0089643

445 Minnesota Street, Suite 1100

St. Paul, Minnesota 55101-2128(651) 757-1450 (Voice)(651) 296-1410 (TTY)

ATTORNEYSSECRETARYRITCHIE

FOR MINESOTAOF STATE, MARK

AG: #2728068-vl

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Documents

Memorandum of Secretary of State Mark Ritchie in Opposition to Petition (2)