OAH Docket No. 7-3500-19027-1
STATE OF
OFFICE OF
ADMINISTRATIVE HEARINGS
|
In the Matter of Proposed Amendments
to Rules Governing Voter Registration and Absentee Balloting, |
REPORT OF THE
ADMINISTRATIVE LAW JUDGE |
Administrative Law Judge (“ALJ”) Richard C. Luis conducted a hearing concerning the above-entitled rules proposed by the Minnesota Office of the Secretary of State (“OSS” or “Secretary of State”) on January 25, 2008, in Suite 106, 60 Empire Drive, Saint Paul, Minnesota. The hearing continued until everyone present had an opportunity to state his or her views on the proposed rules.
The hearing and this Report are part of a
rulemaking process governed by the Minnesota Administrative Procedure Act.[1] The legislature has designed the rulemaking
process to ensure that state agencies have met all the requirements that
The members of the Secretary of State’s hearing panel were Beth Fraser, Director of Governmental Affairs; and Gary Poser, Director of Elections. Fourteen members of the public signed the hearing register.
The Secretary of State and the Administrative
Law Judge received written comments on the proposed rules prior to the
hearing. At the hearing, the initial
deadline for filing written comment was set at twenty calendar days (February
14, 2008), to allow interested persons and the
The Secretary of State must make this Report
available for review by anyone who wishes to review it for at least five
working days before the
After adopting the final version of the rules,
the Secretary of State must submit them to the Revisor of Statutes for a review
of their form. If the Revisor of
Statutes approves the form of the rules, the Revisor will submit certified
copies to the Administrative Law Judge, who will then review them and file them
with the Elections Division of the Secretary of State. When they are filed with the Secretary of
State, the Administrative Law Judge will notify the
Based on the testimony, exhibits, and written comments, the Administrative Law Judge makes the following:
1. The primary purpose of the Secretary of State’s Rules Governing Voter Registration and Absentee Balloting is to establish the form of voter registration applications, create uniform forms and procedures, facilitate voter access to the electoral process, and to adopt rules for the maintenance of the statewide voter registration system as set forth in Minn. Stat. § 201.221, subds. 1 and 2.[2] The proposed rules and rule amendments in the proceeding cover a variety of areas relating to voter registration and absentee balloting, including changes to the voter registration form, changes to the forms of identification acceptable for same-day voter registration, and changes to the form of registration for Minnesotans living outside the country for a brief time.
2. Among other changes, the proposed rules amend rule Part 8200.1100 by changing the size of voter registration applications from 6 x 8-9/16 inches to 8-1/2 x 11 inches and changing the weight of paper required to print these applications, and the exact specifications for printing the applications.[3] An amendment to 8200.1200 requires mail-in applications to provide reference to the location where a voter can find a privacy statement, and requires same-day registration applications to provide a privacy statement on the application itself.[4]
3.
The proposed rules add a part which requires
that any federal postcard application received from a member of the armed
forces of the
4. The proposed rules include a number of changes to Part 8200.5100 (Registration at Precinct Only). The proposed amendments remove subpart 1(A)(3), which allowed a student to prove residence by presenting a student ID that contained the student’s address, a current fee statement that contained a valid address in the precinct, or a copy of a current student registration card that contains the student’s valid address in the precinct.[6] The amendment proposing to change subpart 1(A) also alters the form of tribal identification allowed for same-day registration by removing a reference to Minnesota Statutes, section 201.061 and stating instead the requirements for a tribal identification.[7] The amendment to subpart 1(E) allows residential facilities to provide a list of current employees to election officials on the day of election. These employees can then vouch for the residency of same-day voter applicants who live in the residential home.[8]
5. The proposed rules modify Part 8200.5100, subpart 2(A)(5), the requirement for tribal identification, in the same manner as the above-noted change.[9] In addition, the amendments change Part 8200.5100 subpart 2(B) to allow a voter to use an original bill for telephone, television or Internet provider services, regardless of how those services are delivered, rather than restricting the acceptable bills to the previous standard household services bills.[10] These changes also allow a voter to use a rent statement from a landlord that itemizes utilities expenses, or a current student fee statement that contains the student’s valid address as acceptable proof of residence.[11] The proposed changes add Part 8200.5100, subpart 4, which provides a new method for voters to prove residence for a November election through a postsecondary institution’s voluntary provision of a list of current enrolled students and their addresses to the Secretary of State’s office no earlier than 30 days and no later than 25 days prior to the November election.[12]
6. The proposed changes amend Part 8200.9115, subpart 3 (Production of rosters). Under the proposed changes the roster may be provided to the county auditor in any mutually agreed upon medium, rather than the previous requirement of paper, computer tape or other electronic medium.[13]
7. The amendments propose removing Part 8200.9315, item D, which requires the secretary of state or county auditor to notify the appropriate county auditor if the applicant moved from another county in the state where he was registered to vote.[14]
8. The amendments propose removing the oath currently used under 8200.9939, and replacing it with various forms of registration oaths that include persons who are themselves registered to vote, or are employees in a residential facility.[15] In addition, the amendments propose adding Part 8200.9940, which allows election judges to keep track of the number of persons for whom a voter signs proof-of-residence oaths.[16]
9. In addition, the amendments propose adding rule Part 8200.9960, which provides an example of the form to be used when a voter registration is challenged.[17]
10. The amendments provide for an addition to Part 8210.0500, subpart 1. This addition requires the absentee ballot instructions to include a graphic depiction of the absentee ballot materials and how they are to be assembled by the voter. The Secretary of State must provide each county auditor with a “sample graphic depiction.”[18]
11. The proposed rules amend Part 8210.0500, subpart 2, by changing the word “unregistered” to “registered” in front of voters in the title. All previous instructions following this title are removed from the rules. They are replaced by new detailed instructions for absentee voters.[19] The proposed rules change subpart 3 by changing the word “registered” to “unregistered” in front of voters in the title. All previous instructions following this title are removed from the rule and are replaced by detailed instructions for absentee voters who are unregistered, challenged, or have an incomplete registration.[20]
12. The proposed rules amend Part 8210.0500, subpart 4, regarding instructions for military and overseas voters. These changes remove all previous instructions and replace them with detailed instructions for filling out an absentee ballot.[21] The amendments also include changes to Part 8210.0600 (Statement of Absentee Voter). These changes require that the statements for absentee voters follow the new instructions provided in the above-amended subparts.[22]
13.
On June
22, 2007, the Secretary of State filed a proposed additional notice plan for
its Request for Comments with the Office of Administrative Hearings and
requested that the plan be approved pursuant to Minn. R. 1400.2060. By letter of June 25, 2007,
Administrative Law Judge Eric L. Lipman approved the additional notice plan.
14.
On July 2, 2007, the
15. As
required by Minn. Stat. § 14.131, the
16. On
December 4, 2007, the
17. On
December 20, 2007, the Secretary of State mailed the Notice of Hearing to all
persons and associations who had registered their names with the
18. At
the hearing, the
A. the Request for Comments as published in the State Register on July 2, 2007 (32 S.R. 25);[26]
B. the proposed rules dated December 4, 2007, including the Revisor’s approval;[27]
C. the Statement of Need and Reasonableness (SONAR);[28]
D. the Notice of Hearing as mailed on December 20, 2007;[29]
E. the Notice of Hearing as published in the State Register on December 24, 2007 (32 S.R. 1116);[30]
F. the certification that the
G. the Certificate of Mailing the Notice of Hearing to the Rulemaking Mailing List and to the Parties Identified in the Additional Notice Plan on December 20, 2007;[32]
H. the Certificate of Accuracy of the Mailing List as of December 20, 2007;[33]
J. two sample Minnesota Voter Registration Applications, one with a Voucher Form and one without; and Absentee Instructions for Voters;[35]
K. a Court Order implementing Minn. Stat. § 204B.44, dated November 7, 2006, and Verified Petition Under Minn. Stat. § 204B.44;[36]
L. Addendum to the Statement of Need and Reasonableness;[37] and
M. public comments received by the
19. The Administrative Law Judge finds that the Secretary of State has met all of the procedural requirements under applicable statutes and rules.
20. In
its SONAR, the Secretary of State asserts that its statutory authority to adopt
these rules regarding voter registration is contained in Minn. Stat. §§ 201.221,
subds. 1 and 2, and 201.061, subd. 3 (a) (2) and (3).[39] Subdivision 1 of Minn. Stat. § 201.221,
requires that the Secretary of State implement the provisions of the chapter by
adopting rules consistent with federal and state election laws. Subdivision 2 specifies that the “[t]he
secretary of state shall assist local election officers by devising uniform
forms and procedures. The secretary of
state shall provide uniform rules for maintaining voter registration records on
the statewide registration system.” Most
significantly,
(2) presenting any document approved by the secretary of state as proper identification;
(3) presenting one of the following:
(i) a
current valid student identification card from a postsecondary educational
institution in
21. As
to absentee voting, the
The secretary of state shall adopt rules establishing the form, content, and type size and style for the printing of blank applications for absentee ballots, absentee voter lists, return envelopes, certificates of eligibility to vote by absentee ballot, ballot envelopes and directions for casting an absentee ballot. Any official charged with the duty of printing any of these materials shall do so in accordance with these rules.
22. The Administrative Law Judge finds that the Secretary of State has general statutory authority to adopt the proposed rules.
23. Minn.
Stat. §§ 14.131 and 14.23 requires that an agency include in its SONAR a
description of its efforts to provide additional notification to persons or
classes of persons who may be affected by the proposed rule or explain why
these efforts were not made. As
discussed above, the Secretary of State submitted two additional notice plans
to the Office of Administrative Hearings, which were reviewed and approved by
the Administrative Law Judge in letters dated June 25, 2007, and December 6,
2007. During the rulemaking hearing, the
24. The
A. Policymakers, especially in the Legislature, who have oversight of this subject matter;
B. Political parties;
C. Professional election administrators;
D. Former Secretaries of State;
E. Local and municipal governments that actually implement elections;
F. Public and private college student and administration organizations;
G. Lawyers with expertise in elections matters; and
H. Public policy groups representing a spectrum of views held within the general public.[41]
25. A copy of the proposed rules, the Notice of
Hearing, and the SONAR were all available on the Secretary of State’s website.
26. The
27. Minn. Stat. § 14.111 imposes an additional
requirement calling for notification to be provided to the Commissioner of
Agriculture when rules are proposed that affect farming operations. In addition, where proposed rules affect
farming operations, Minn. Stat. § 14.14, subd. 1b, requires that at least one
public hearing be conducted in an agricultural area of the state.
28. The
proposed rules do not affect farming operations, and the Administrative Law
Judge concludes that the OSS did not, and was not required to, notify the
Commissioner of Agriculture.
29. Minn. Stat. § 14.131 requires an agency adopting rules to include in its SONAR:
(1)
a
description of the classes of persons who probably will be affected by the
proposed rule, including classes that will bear the costs of the proposed rule
and classes that will benefit from the proposed rule;
(2)
the
probable costs to the agency and to any other agency of the implementation and
enforcement of the proposed rule and any anticipated effect on state revenues;
(3)
a
determination of whether there are less costly methods or less intrusive
methods for achieving the purpose of the proposed rule;
(4)
a
description of any alternative methods for achieving the purpose of the
proposed rule that were seriously considered by the agency and the reasons why
they were rejected in favor of the proposed rule;
(5)
the
probable costs of complying with the proposed rule, including the portion of
the total costs that will be borne by identifiable categories of affected
parties, such as separate classes of governmental units, businesses, or
individuals;
(6)
the
probable costs or consequences of not adopting the proposed rule, including
those costs or consequences borne by identifiable categories of affected
parties, such as separate classes of government units, businesses, or
individuals; and
(7)
an
assessment of any differences between the proposed rule and existing federal
regulations and a specific analysis of the need for and reasonableness of each
difference.
30. With respect to the first factor, in its SONAR the Secretary of State recognized two groups; those who will benefit from the proposed rule changes and those who will be affected by the proposed changes. The groups that stand to benefit are the Secretary of State’s Office, election officials, election judges and eligible voters. Those who will be affected by the proposed rules are the Secretary of State’s office, election offices and local governments, and the public because election costs are ultimately borne by the taxpayers.[42]
31. With
respect to the second requirement, the
32. With
respect to the third element, the
33. With
respect to the fourth requirement, the
34. With
respect to the fifth factor, the Secretary of State must note the probable cost
of complying with the proposed rules. The
35. With respect to the sixth factor, the
36. With respect to the seventh factor, the Secretary of State asserts there is nothing in the proposed rules that conflicts with federal regulations.[54]
37. The
Administrative Law Judge concludes that the
38. Minn. Stat. § 14.131 also requires that an agency include in its SONAR a description of how it “considered and implemented the legislative policy supporting performance-based regulatory systems set forth in section 14.002.” Section 14.002 states, in relevant part, that “whenever feasible, state agencies must develop rules and regulatory programs that emphasize superior achievement in meeting the agency’s regulatory objectives and maximum flexibility for the regulated party and the agency in meeting those goals.”
39. The
Secretary of State explained in the SONAR that many of the proposed rules are its
responses to recent legislative changes.
However, the
40. The
Administrative Law Judge finds that the
C. Consultation
with the Commissioner of Finance
41. Under
42. The
Secretary of State sent its proposed rule to the Commissioner of Finance on
November 30, 2007.[56] On behalf of the Commissioner of Finance,
Executive Budget Officer Abigail Read replied on November 30, 2007. This response affirms the
43. The Administrative Law Judge finds that the Secretary of State has met the requirements set forth in Minn. Stat. § 14.131 for consulting with the Commissioner of Finance.
44. Effective July 1, 2005, under Minn. Stat. §
14.127, the OSS must “determine if the cost of complying with a proposed rule
in the first year after the rule takes effect will exceed $25,000 for: (1) any one business that has less than 50
full-time employees; or (2) any one statutory or home rule charter city that
has less than ten full-time employees.”[58] The Secretary
of State must make this determination before the close of the hearing record,
and the Administrative Law Judge must review the determination and approve or
disapprove it.[59]
45. In
the SONAR, the
46. The
Administrative Law Judge finds that the Secretary of State has made the
determination required by Minn. Stat. § 14.127 and approves that determination.
47. Under
48. The
question of whether a rule has been shown to be reasonable focuses on whether it
has been shown to have a rational basis, or whether it is arbitrary, based upon
the rulemaking record.
49. Reasonable minds might be divided about the wisdom of a certain course of action. An agency is legally entitled to make choices between possible approaches so long as its choice is rational. It is not the role of the Administrative Law Judge to determine which policy alternative presents the “best” approach, since this would invade the policy-making discretion of the agency. The question is, rather, whether the choice made by the agency is one that a rational person could have made.[69]
50. In addition to need and reasonableness, the Administrative Law Judge must also assess whether the Secretary of State complied with the rule adoption procedure, whether the rule grants undue discretion, whether the OSS has statutory authority to adopt the rule, whether the rule is unconstitutional or illegal, whether the rule constitutes an undue delegation of authority to another entity, or whether the proposed language is not a rule.[70]
51. Because the Secretary of State suggested changes to the proposed rules after original publication of the rule language in the State Register, it is also necessary for the Administrative Law Judge to determine if the new language is substantially different from that which was originally proposed. The standards to determine whether changes to proposed rules create a substantially different rule are found in Minn. Stat. § 14.05, subd. 2. The statute specifies that a modification does not make a proposed rule substantially different if:
“the differences are within the scope of the matter announced . . . in the notice of hearing and are in character with the issues raised in that notice;”
the differences “are a logical outgrowth of the contents of the . . . notice of hearing, and the comments submitted in response to the notice;” and
the notice of hearing “provided fair warning that the outcome of that rulemaking proceeding could be the rule in question.”
52. In reaching a determination regarding whether modifications result in a rule that is substantially different, the Administrative Law Judge is to consider:
whether “persons who will be affected by the rule should have understood that the rulemaking proceeding . . . could affect their interests;”
whether the “subject matter of the rule or issues determined by the rule are different from the subject matter or issues contained in the . . . notice of hearing;” and
whether “the effects of the rule differ from the effects of the proposed rule contained in the . . . notice of hearing.”
VIII. Analysis of the Proposed Rules
53. This Report is limited to discussion of the portions of the proposed rules that received critical comment or otherwise need to be examined, and it will not discuss each comment or rule part. Persons or groups who do not find their particular comments referenced in this Report should know that each and every suggestion, including those made prior to the hearing, has been carefully read and considered. Moreover, because sections of the proposed rules were not opposed and were adequately supported by the SONAR, a detailed discussion of each section of the proposed rules is unnecessary.
54. The Administrative Law Judge finds that the Secretary of State has demonstrated, by an affirmative presentation of facts, the need for and reasonableness of all rule provisions not specifically discussed in this Report. The Administrative Law Judge also finds that all provisions not specifically discussed are authorized by statute and there are no other problems that would prevent the adoption of the rules.
IX. Broad Issues Relating to the Proposed
Rules
Public Support for the Proposed Rules
55. Overall,
there was general support for the proposed rules expressed by organizations
such as the League of Women Voters Minnesota, the
56. Some groups suggested that the Secretary of State add even more types of identification that could be presented as additional proof of residence on election day, such as out-of-state drivers’ licenses and out-of-state identification cards.[72] The Secretary of State has indicated that it will consider these suggestions in future rulemaking proceedings.
Unfunded Mandates
57. State
Representatives Laura Brod and Tom Emmer objected to the timing of the proposed
rules as an attempt by the Secretary of State to “subvert the legislative
process.”[73] They argued that the legislative process is
the more appropriate method by which to accomplish change regarding voter registration
and absentee voting. Specifically, the
Representatives asserted that the proposed rules are unfunded mandates being
placed on municipalities, cities, counties, postsecondary institutions, and the
taxpayers of
58. In
its post-hearing comments, the Secretary of State responded that it has
followed the procedural requirements of the rulemaking process, which do not
require a fiscal note. Further, the
59. The
Administrative Law Judge acknowledges the arguments of Representatives Brod and
Emmer, but notes that initiation of this rulemaking process is within the scope
of existing legislation, and within the
60. One
of the changes to proposed rule part 8200.1100 increases the size of voter
registration applications returned by mail from six inches by 8-9/16 inches to
8-1/2 inches by 11 inches. The Secretary
of State proposed to make this change because the Help America Vote Act
recently required voter registration applications to include additional
questions and information, making the existing applications crowded and
difficult to read.[76] Increasing the size of the applications,
according to the
61. At
the hearing, the Secretary of State submitted an addendum to its SONAR, in
which it revised its estimate of the number of voter registration applications
it would be ordering from 3 million to 1 million.[78] The revised estimates also indicated that the
savings to local governments may not be as large as previously anticipated
based on mailing costs for the larger sized applications, but the OSS estimated
that these higher mailing costs would be offset by allowing local governments
to replace many of these forms with different forms for registering in
person. The
62. The Republican Party of Minnesota (“RPM”) objected to this increase in size, asserting that printing costs will more than double based on the increased size of the application.[80] The RPM further argued that the additional cost is not a one-time cost, but will occur at every election. Also problematic to the RPM is that existing stock may be used up before printing according to the proposed size specifications. The RPM worried that the use of two differently sized applications in the same election will cause confusion among voters.[81] Overall, the RPM is not convinced that the Secretary of State has adequately predicted the potential costs of the new application form or justified the larger size, particularly as it relates to small municipalities.
63. The Minnesota Association of County Officers (“MACO”) offered support for the proposed language of Part 8200.1100, largely repeating the points made by the Secretary of State in the SONAR.[82]
64. The
Secretary of State respectfully disagreed with the RPM and referred again to
the arguments in the SONAR and its addendum.
The
65. The Administrative Law Judge finds that the Secretary of State has adequately justified the proposed changes to Part 8200.1100. The Administrative Law Judge notes the support offered by MACO, which is an organization made up of the very officials that regularly deal with the printing of voter registration applications. The changes are needed and reasonable and have a rational basis in the record.
Part 8200.4000
66. The Secretary of State proposes the following new rule part regarding the processing of federal post card applications:
Any
federal post card application received from a member of the armed forces of the
United States or from a person currently residing in Minnesota but temporarily
living in another county must be processed as a voter registration application
and, if the application is properly completed, the information on that
application must be entered into the statewide voter registration system.
67. The OSS argues that this new rule part is necessary to comply with the Uniformed and Overseas Citizens Absentee Voting Act[84] that requires federal post card applications received from members of the military and others living temporarily overseas suffice to register these individuals to vote.[85]
68. State Representatives Laura Brod and Tom Emmer commented that they believe the use of the word “person” in this proposed rule part is vague and “opens the door for potential abuse of the voting system.”[86] Representatives Brod and Emmer did not propose any modified language. The RPM expressed a similar concern, in that a “person” under traditional legal definitions includes entities such as a corporation, who are not eligible to vote.[87]
69. The Minnesota Association of County Officers (“MACO”) suggested that the term “eligible voter” be used in place of “person” or “individual.”[88]
70. The
Secretary of State responded that the word “person” is used frequently in the
existing rules, and that the language is necessary to help local election
officials distinguish which applicants are eligible to register and which are
not. The
71. The
proposed new rule part is consistent with the federal statute, and its use of
the word “person” is consistent with that statute and existing rule
language. The
Part 8200.5100, subpart 1, item E
72. Item E of subpart 1 is new language introducing an additional method by which a qualified voter may prove residence and register at the precinct on election day. A resident of a “residential facility” may prove residence at a facility in the precinct “by having an employee employed by and working in a residential facility located in the precinct, who knows that the applicant is a resident of that residential facility, vouch for that facility resident, and sign the oath in Part 8200.9939, in the presence of the election judge.”[89] The facility’s employee is eligible to sign the oath only if:
(1) . . . his or her name appear(s) on a list of
employees provided by the general manager or equivalent officer of the
residential facility to the county auditor at least 20 days before the
election; or
(2) [he or she] provide(s) a statement on the
facility’s letterhead that the individual is an employee of the facility that
is signed and dated by a manager or equivalent officer of the facility . . . .
73. The
Secretary of State states that subitem 1 is reasonable because it reflects the
employee voucher standard set out in 2005 in Minn. Stat. § 201.061, subd. 3 (b). As to subitem 2, the
74. Subitem
2 is the Secretary of State’s way of giving residential facilities an
additional means to facilitate the voting process of their residents. The
75. The
Secretary of State briefly considered allowing residential facility employees
to demonstrate their employment by providing to an election judge an ID badge
from the residential facility or a business card.[93] The
76. Several
organizations and individuals commented in support of this new procedure,
echoing the comments submitted by the
77. The Office of Governor Tim Pawlenty (“Office of the Governor” or “OTG”) did not support the proposed new language in paragraphs 1 and 2. The Office of the Governor argues that the proposed text of subitems 1 and 2 is not consistent with the statutory authority in Minn. Stat. § 201.061, subd. 3 (b).[98] The OTG’s first point of contention is that Minn. Stat. § 201.061, subd. 3 (b), requires the list of employees to be prepared by the “operator” of the facility, while item E, subitem 1 of the proposed rules refers instead to a “general manager or equivalent officer.” The OTG expressed concern that the proposed language would potentially allow the list preparation and certification to be exercised by a number of employees within a facility, and not solely the “operator” as required by statute. Second, the Office of the Governor pointed out that the proposed language of item E, subitem 1 does not restate the statutory requirement that the managerial employee verify the address or certify the list of employees. The OTG questioned why the SONAR did not address this difference between the statute and the proposed rule.[99]
78. The third issue addressed by the OTG involves item E, subitem 2. The OTG argues that this is a new procedure for qualifying employees to vouch for facility residents that is contrary to the language of Minn. Stat. § 201.061, subd. 3 (b).[100] The OTG suggests that the language of subitem 2 circumvents the statutorily required time and procedure for submitting lists of facility employees ahead of time and allows facilities to instead submit certified statements on election day. According to the Office of the Governor, the Secretary of State’s reliance on Minn. Stat. § 201.061, subd. 3 (a)(2), is misplaced, because the statute allows an individual voter to prove residency by “presenting any document approved by the secretary of state as proper identification.” The OTG argues that this is different from the statement of employees provided by the residential facility, in that the statement identifies employees who may vouch for voters who are residents of the facility and not the voters themselves.[101] The OTG suggests that the Secretary of State is attempting to override the intent of the Legislature.
79. The Republican Party of Minnesota voiced many of the same points made by the OTG. Specifically, it pointed out that the intent of the Legislature in having the facility submit the list to the county auditor at least 20 days before the election was presumably to allow the county auditor time to verify the accuracy and/or authenticity of facilities and of the lists they produce.[102] The RPM argues that the new language of subitem 2 eliminates that verification period and increases the possibility of voter fraud. Furthermore, the RPM asserts that in the language of subitem 2, the Secretary of State has created an ad hoc system that is effectively regulated by election judges instead of county auditors.[103] For example, each election judge in each precinct, as he or she reviews facility statements presented on election day, may have a different idea of what is considered a “general manager or equivalent officer,” thereby creating disparity and unequal treatment of voters.
80. The
Secretary of State addressed each of these points. As to the argument against the use of the
phrase “general manager or equivalent officer,” the OSS states that the use of
that language will actually aid facilities and election officials in determining
which facility management personnel can create the list of employees. In other words, the use of the phrase
“general manager or equivalent officer” helps to interpret the statutory term
“operator.”[104] The
81. As
to the OTG’s argument that the Secretary of State has not repeated the
“certify” language of the statute in the proposed rule at item E, the OSS
states that it is not required to repeat the statute verbatim, and that it has
not made any statements inconsistent with the statute. The Secretary of State also acknowledged that
the language of the statute supersedes the language of the rule, and stated
that the lack of repetition of the statutory provisions in the rule is of no
legal significance.[106] The
82. The Secretary of State responded to the assertion that it lacked authority to introduce an additional procedure as proposed in subitem 2, by pointing to the language of Minn. Stat. § 201.061, subd. 3 (a)(4), which states that an individual may prove residence for purposes of registering by:
(4) having a voter who is registered to vote in the precinct, or who is an employee employed by and working in a residential facility in the precinct and vouching for a resident in the facility, sign an oath in the presence of the election judge vouching that the voter or employee personally knows that the individual is a resident of the precinct.
According to the OSS, while the provision by the facility to the county auditor of a list of employees at least 20 days prior to the election is a method of verifying the assertion that the person vouching is in fact an employee as described in subd. 3 (a)(4), it does not cover all circumstances.[107] In an environment where there is often a great deal of employee turnover, allowing facilities to identify employees correctly on election day is consistent with the language of subd. 3 (a)(4).
83. According
to the Secretary of State, the language of Minn. Stat. § 201.061, subd. 3 (b),
requiring residential facilities to certify lists of their employees at least
20 days prior to the election, is directive and not exclusive.[108] The
84. As
to the argument of the RPM that election judges will not have time to verify
the accuracy or authenticity of a statement from a facility provided on
election day, the Secretary of State notes that nowhere in statute or rule is
there a requirement for verification of information received from residential
facilities under the existing procedure.[109] The Secretary of State referred to the felony
penalties under
85. The
86. The
Administrative Law Judge finds that the Secretary of State has adequately
addressed each of the concerns regarding Minn. R. 8200.5100, subpart 1, item E,
put forth by the Office of the Governor, the RPM, and any other comments
addressing this issue. The
Part 8200.5100, subpart 2, item B
87. Subpart 2 provides a list of photo identifications that may be used in combination with a document with a current address in the precinct to provide proof of residence. Item A is a list of the acceptable photo IDs and item B is a list of the acceptable documents.[111] Item B is proposed for amendment, as follows:
B. An original bill for gas, electric,
telephone, cellular telephone, cable television, solid waste, water, or sewer
services is acceptable as an additional proof of residence under this subpart
if:
(1)
the bill shows the voter’s name and address in the precinct; and telephone,
television, or Internet provider services, regardless of how those telephone,
television, or Internet provider services are delivered; or
(2)
gas, electric, solid waste, water, or sewer services, is acceptable as an
additional proof of residence under this subpart if:
(a)
the bill shows the voter’s name and current address in the precinct; and
(b)
the due date on the bill is within 30 days before or after election day.
88. The Secretary of State asserts that it is reasonable to clarify that telephone, television, and Internet provider service bills may be used regardless of how the services are delivered because it accommodates today’s fast-paced technological advances, yet is general enough in nature so that the rules will not need to be continually updated as new technologies arise.[112]
89. This
proposed change to the rules generated support from a variety of interested
entities.
90. There was also opposition to this proposed change. The Republican Party of Minnesota objected to the phrase “regardless of how those telephone, television or Internet provider services are delivered” as “clearly arbitrary and capricious and lacking any rational relationship to even a minimal standard for verification of residency.”[115] The RPM argued that cellular telephone and Internet services are different from traditional utility bills (water, sewer, etc.) because these services can be, and frequently are, rendered anywhere in the world without any necessary connection to a specific and fixed physical location. With the increased occurrence of on-line billing, where hard copies of the bills may never be mailed, the RPM argues that a cellular telephone or Internet account, even if billed to a particular address within a precinct, demonstrates no real evidence of that person’s physical presence within that precinct.[116]
91. The RPM relies on Minn. Stat. § 200.031 to show that proof of physical presence is essential to demonstrating residence. It also cites case law interpreting Minn. Stat. § 200.031 and its precursor, arguing that the Minnesota Supreme Court has stated that the concept of residency is captured and best summarized by Minn. Stat. § 200.031 (i), and that the foremost considerations with respect to residency in the election context are physical presence and intent to reside at that location.[117] Accordingly, the RPM asserts that the Secretary of State’s proposed change to subpart 2, item B lacks a rational basis and must be rejected by the Administrative Law Judge.[118]
92. Representatives Brod and Emmer voiced similar concerns and suggested that this type of change should move through the legislative process so that it can be openly debated and resolved.[119]
93. In
response to these concerns, the Secretary of State points out that cellular
telephone bills are currently allowed in the existing rules, as shown above,
and accordingly, the objections are to the status quo. As to Internet services, the OSS respectfully
disagrees with the assertion that Internet services are not tied to a
particular address, citing dial-up modems, cable modems, and satellite service.[120] The
94. The Administrative Law Judge finds that the Secretary of State has shown a rational basis for the language at subpart 2, item B (see Findings 48 and 49), and also notes that there was public support for this change (see Finding 89). The concerns of fraud addressed by the RPM and Representatives Brod and Emmer are certainly valid, but the risk of such fraud is no greater under the proposed rules than it is under the existing rules. The proposed language addresses today’s rapidly changing technology and facilitates access to the electoral process. Proposed Part 8200.5100, subpart 2, item B is found to be necessary and reasonable.
95. Proposed rule Part 8200.5100, subpart 4 is a new subpart addressing additional proof of residence allowed for students at the November general elections. This new subpart largely mirrors existing subpart 3, but instead adds participation by the Office of the Secretary of State at the time of November general elections. Subparts 3 and 4 allow students at Minnesota postsecondary educational institutions to prove their residence on election day by presenting a current valid photo identification issued by the Minnesota postsecondary institution only if the institution certifies a list containing the voter’s name, student identification number, and address within the precinct within a certain period of time before the election.
96. The chief difference between subpart 3 and subpart 4 is to whom the certification is made. Subpart 3 requires certification by the institution to the county auditor, while subpart 4 requires certification to the Secretary of State when the election involved is the November general election. Subpart 4 then requires the Secretary of State to process the data through its automated precinct-finder, produce a list with the students’ names and addresses, and provide that list to the appropriate county auditor at least 14 days prior to the November general election. Proposed subpart 4 states, “[t]he list must be sorted by precinct and student last name and must be forwarded in an electronic format specified by the secretary of state or other mutually agreed upon medium.”
97. At the hearing, the Administrative Law Judge raised questions about which list the Secretary of State was referring to in the preceding language.[122] To clarify that provision, the Secretary of State has proposed the following modified language:
The
lists provided by the secretary of state must be sorted by precinct and student
last name and must be forwarded to the county auditors in an electronic format
specified by the secretary of state.
Alternatively, the list provided to the county auditors may be provided
in another medium, if a written agreement specifying the medium is signed by
the secretary of state and the county auditor at least 90 days before the
November general election. A written
agreement is effective for all elections until rescinded by either party.
98. The
Secretary of State also proposes to make a similar modification at Minn. R. 8200.9115,
subpart 3. The
99. To
correct an oversight and provide clarity and consistency in the proposed rules,
the Secretary of State proposes to amend the last sentence of subpart 3 as
follows: “The auditor shall notify all
postsecondary educational institutions in the county of the provisions of this
subpart subparts 3 and 4.”
100. These three modifications suggested by the OSS have been shown to be needed and reasonable, and do not make rule Parts 8200.5100, subparts 3 and 4, and 8200.9115, subpart 3 substantially different from the rules as initially proposed.
101. Another
difference between subparts 3 and 4 generated some public controversy. Since 1991,
102. In
proposing the language of subpart 4, the Secretary of State has proposed to
include students who are not residing in the institutions’ housing and living more
than 10 miles from the institution. The
Secretary of State asserts that doing so will make it easier for postsecondary
institutions and election officials to administer the rules, and provide equal
treatment for all students who do not live in university housing “instead of
providing an advantage to those who live 9 miles from the institution that is
not available to those who live 11 miles away.”[125] The Secretary of State cites Minn. Stat. §
201.061, subd. 3 (a)(3)(i), as its authority to adopt this proposed language. This statutory provision allows student
voters to prove their residency by providing: “(i) a current valid student
identification card from a postsecondary educational institution in
103. The Office of the Governor commented that proposed subpart 4 creates a new procedure for use of student identification cards for same-day registration that does not conform to the statutory requirements of Minn. Stat. §§ 201.061, subd. 3 (a)(3)(i) and 135A.17.[127] The OTG acknowledged that the language of Minn. Stat. § 135A.17 is permissive and does not mandate that postsecondary institutions create a student list. But the OTG went on to say that if an institution chooses to create the list, the institution must comply with the statutory requirements. The OTG also argued that the proposed rule contradicts existing law because it requires postsecondary institutions to submit student lists to the Secretary of State instead of county auditors.[128]
104. The Office of the Governor went on to argue that the proposed rule part creates a system that overlaps with the statute and will create confusion for postsecondary institutions, election judges, and students.[129] Finally, the OTG opined that the creation of a state-wide database of postsecondary students’ names and addresses may have unforeseen data privacy implications. Such a list may be considered public data available to any person upon request, including credit card issuers and persons who would sell the list to credit card issuers. The OTG argues that this would defeat the purpose of the 2007 amendment to Minn. Stat. § 135A.145, which prohibits postsecondary institutions from giving credit card issuers address or contact information for students.[130]
105. The Republican Party of Minnesota also objected to the proposed addition of subpart 4, putting forth some of the same arguments as the OTG. The RPM argued that the proposed language exceeds the statutory authority of the Secretary of State at Minn. Stat. § 135A.17, subd. 2, by deleting the 10-mile radius requirement and by creating a category of individuals who are ineligible for inclusion on the list (individuals who reside in housing owned by a postsecondary educational institution but are not students enrolled in the institution).[131] The RPM also suggested that references in the proposed rule to “postsecondary institutions” should also add the qualifier “that enroll students accepting state or federal financial aid” to conform to the language of Minn. Stat. § 135A.17, subds. 1 and 2.[132] Representatives Brod and Emmer similarly objected to proposed subpart 4.[133]
106. The
proposed change to the rules also generated significant support from interested
organizations.
The secretary of state’s original rulemaking on this subject in 1986 limited the scope of the student lists received from colleges and universities to students who resided in housing that was owned, operated, leased or otherwise controlled by the institution. This was not a legislative requirement, but simply the secretary of state’s decision at that point in time on how to implement this new provision. As such, it is our view that the secretary of state has the legal authority to revise or amend the rule as needed, in this case by expanding the scope of the rule to include students who do not reside in the institution’s housing. We note that Minn. Stat. § 135A.17 was not enacted by the legislature until 1991 and that, in our view, these provisions are complementary to and not in conflict with the secretary of state’s prior rulemaking.[136]
MACO acknowledged that the proposal for the Secretary of State to provide a precinct-by-precinct list of college students for general elections is being made at their request. The organization believes that this proposal will improve the process of registering students at the polling place in general elections by providing this information in a standard and efficient manner.[137]
107. The
Secretary of State responded to each of the comments in opposition to subpart
4. The OSS agrees that proposed subpart
4 creates a new procedure for use of student identification cards that is
different from existing law, but argues that the language of Minn. Stat. §§
135A.17 and 201.061, subd. 3 (a)(3)(i) is not exclusive.[138] The Secretary of State cited its broad
authority under Minn. Stat. § 201.061, subd. 3 (a)(2), to approve documents for
proper identification, and, like MACO, argued that the enactment of Minn. Stat.
§§ 135A.17 and 201.061, subd. 3 (a)(3)(i) in 1991 did not extinguish the
108. The
109. The
Administrative Law Judge finds that the Secretary of State has demonstrated the
need for and reasonableness of the proposed language at subpart 4, and again
notes the public support for this change.
The
Part 8200.9315
110. Part
8200.9315 governs the process of the Secretary of State and county auditors
when entering information from a voter registration application into the
statewide registration system. The
111. The Republican Party of Minnesota and State
Representatives Brod and Emmer objected to the proposed change, stating that
the Secretary of State has not provided a rational basis for eliminating this
requirement, which can help reduce fraud and maintain uniformity and
consistency of voter registration lists throughout
112. MACO
supported the proposed change and commented that the requirement for one county
auditor to notify another county auditor whenever a voter moved from one county
to another was previously required by the former Minn. R. 8200.3200, which was
repealed in 1996.[146] MACO agreed with the
113. In
its responsive comments, the Secretary of State restated the arguments set out
in the SONAR as sufficient to address the concerns of the RPM and
Representatives Brod and Emmer. In
addition, the
114. The Administrative Law Judge finds that the proposed change to Part 8200.9315 has a rational basis in the record. It is necessary and reasonable to delete a requirement that has become obsolete.
Parts 8200.9939, 8200.9960, and 8210.0800
115. In each of these proposed rule parts, the Secretary of State proposes to add a line to a form, an oath, or an affidavit of eligibility, for the person completing the form, oath, or affidavit to include his or her email address. In each instance, the form states that the provision of an email address is optional. The Secretary of State asserts that including this line on these forms is reasonable because an email address is a convenient way for the county auditor to follow up with the person completing the form.[147]
116. The RPM and State Representatives Brod and Emmer objected to the proposed addition of a line for an email address as raising data privacy issues.[148] The RPM argued that this proposed change has no relevance to residency and, therefore, that there is no reason for any governmental agency to collect this kind of information on voters or potential voters. The RPM did acknowledge that Minn. Stat. § 201.071, subd. 1, does allow voter registration applications to include the voter’s email address, if provided by the voter.[149] Nonetheless, the RPM recommended strongly against the inclusion of a request, even if optional, on any forms completed by voters.
117. MACO
supported the proposed additions to Parts 8200.9939, 8200.9960, and 8210.0800,
because email is often quicker and more efficient than the
118. The
Secretary of State responded to the concerns of RPM and Representatives Brod
and Emmer as moot, based on the language of Minn. Stat. § 201.071, subd. 1, as
cited above. In addition, the
119. The Administrative Law Judge finds that the Secretary of State has adequately justified the proposed changes to Parts 8200.9939, 8200.9960, and 8210.0800. The Administrative Law Judge notes the support offered by MACO, which is an organization made up of the very officials that regularly deal with the printing of voter registration applications. The changes are needed and reasonable and have a rational basis in the record.
Part 8210.0500
120. Part 8210.0500 sets out instructions to absentee voters. The changes to this part are largely a reorganization of the current rules. Much of the current language is carried over into the proposed rules and refashioned in a more logical way.[152]
121. The comments from the RPM and Representatives Brod and Emmer, brought to the attention of the Secretary of State that a statement in the current (and proposed) rules is inconsistent with Minn. Stat. § 203B.08, subd. 1, which allows an absentee voter to designate an agent (without regard to candidacy), and permits that agent to deliver return envelopes of not more than three voters.[153] The rules, both existing and proposed, prohibit the agent from being a candidate, directly contradicting the statute, in Part 8210.0500, subparts 2 and 3.
122. As a
result, the Secretary of State proposes the following change to the
parentheticals at subpart 2, step 8, and subpart 3, step 10: (this person cannot be a candidate and
cannot return ballots for more than three voters) (this person cannot
return ballots for more than three voters).
The
123. The Administrative Law Judge finds that the Secretary of State has shown that the proposed reorganization of Part 8210.0500 is needed and reasonable. The Administrative Law Judge finds further that the modification to the rules as originally proposed is not a substantial change, and is necessary and reasonable to comply with Minn. Stat. § 203B.08, subd. 1.
Based on the Findings of Fact, the Administrative Law Judge makes the following:
1.
The Secretary of State gave proper notice in
this matter. The
2.
The
3.
The
4. The additions and amendments to the proposed rules suggested by the OSS after publication of the proposed rules in the State Register are not substantially different from the proposed rules as published in the State Register within the meaning of Minn. Stat. § 14.05, subd. 2, and 14.15, subd. 3.
5. Any Findings that might properly be termed Conclusions and any Conclusions that might properly be termed Findings are hereby adopted as such.
6. A Finding or Conclusion of need and reasonableness with regard to any particular rule subsection does not preclude and should not discourage the Secretary of State from further modification of the proposed rules based upon this Report and an examination of the public comments, provided that the rule finally adopted is based upon facts appearing in this rule hearing record.
Based on the Conclusions, the Administrative Law Judge makes the following:
IT IS RECOMMENDED that
the proposed rules, as modified, be adopted.
Dated: March 24, 2008.
|
/s/ Richard C. Luis |
|
RICHARD C. LUIS |
|
Administrative Law Judge |
Recorded: Reported by Shaddix & Associates
Transcript (one volume)
[1]
[2] Statement of Need and Reasonableness (“SONAR”) at 1.
[3] Exhibit (“Ex.”) 9 at 1-2; SONAR at 10-11.
[4] Ex. 9 at 2; SONAR at 12.
[5] Ex. 9 at 3; SONAR at 12.
[6] Ex. 9 at 4; SONAR at 12.
[7]
[8] Ex. 9 at 4-6; SONAR at 13-14.
[9] Ex. 9 at 6; SONAR at 13.
[10] Ex. 9 at 7; SONAR at 14-15.
[11]
[12] Ex. 9 at 8-10; SONAR at 15-19.
[13] Ex. 9 at 12; SONAR at 18.
[14]
[15] Ex. 9 at 13-14; SONAR at 18.
[16] Ex. 9 at 14-16; SONAR at 19.
[17] Ex. 9 at 16-17; SONAR at 19.
[18] Ex. 9 at 21; SONAR at 21.
[19] Ex. 9 at 21-25; SONAR at 21.
[20] Ex. 9 at 25-29; SONAR at 21.
[21] Ex. 9 at 29-32; SONAR at 21.
[22] Ex. 9 at 32; SONAR at 22.
[23] 32 State Register 25 (July 2, 2007); Ex. 23.
[24] SONAR at 6.
[25] Ex. 26.
[26] Ex. 23.
[27] Ex. 9.
[28] Ex. 1.
[29] Ex. 2.
[30] Ex. 25.
[31] Ex. 24.
[32] Ex. 26.
[33] Ex. 27.
[34] Ex. 28.
[35] Exs. 3, 4, and 5.
[36] Exs. 6 and 7.
[37] Ex. 8.
[38] Exs. 10-22. (Please note that Ex. 20 is a duplication of Ex. 8.)
[39] SONAR at 1-2.
[40] Exs. 26 and 27.
[41] SONAR at 8-10.
[42] SONAR at 2-4.
[43] SONAR at 4.
[44] Ex. 8.
[45] SONAR at 4.
[46]
[47]
[48] SONAR at 10-22.
[49] SONAR at 4.
[50] SONAR at 5-6.
[51]
[52]
[53] SONAR at 5-6, and Ex. 8.
[54] SONAR at 6.
[55] SONAR at 7.
[56] SONAR at 6.
[57]
[58] Minn. Stat. § 14.127, subd. 1.
[59]
[60] SONAR at 6.
[61]
[62]
Minn. Stat. § 14.14, subd. 2;
[63] Mammenga v. Dept. of Human Services, 442
N.W.2d 786 (
[64] Ex. 8.
[65] In re Hanson, 275 N.W.2d 790 (
[66] Greenhill v. Bailey, 519 F.2d 5, 19 (8th Cir. 1975).
[67] Mammenga, 442 N.W.2d at 789-90; Broen Mem’l Home v.
[68] Manufactured Hous. Inst. v. Pettersen, 347 N.W.2d at 244.
[69] Federal Sec. Adm’r v. Quaker Oats Co.,
318
[70]
[71] Exs. 10, 11, 12, 13, 16, 17, 18, 19 and 22. See also, comments of Arc Greater Twin Cities, dated February 14, 2008.
[72] Exs. 18 and 19.
[73] Comments of Representatives Brod and Emmer, dated January 23, 2008.
[74]
[75] Attachment to the Secretary of State’s comments, dated February 22, 2008.
[76] SONAR at 10.
[77]
[78] Ex. 8.
[79]
[80] Comments of Trimble & Associates, dated February 11, 2008, at 1.
[81]
[82] Supplemental comments of MACO, dated February 22, 2008. The supplemental comments amended statements made by MACO in its comments dated February 20, 2008.
[83] Comments of the Secretary of State, dated February 22, 2008, at 10.
[84] 42 U.S.C. § 1973 ff-1.
[85] SONAR at 12.
[86] Comments of Representatives Brod and Emmer, dated January 23, 2008.
[87] Comments of Trimble & Associates, dated February 11, 2008, at 2.
[88] Comments of MACO, dated February 20, 2008.
[89] Proposed item E goes on to define “residential facility” by referencing numerous statutory provisions.
[90] SONAR at 14.
[91]
[92]
[93]
[94] Comments of Representatives Brod and Emmer, dated January 23, 2008.
[95] Exs. 11, 12, 13, and 18. See also, comments of Arc Greater Twin Cities, dated February 14, 2008.
[96] Ex. 10.
[97]
[98] Comments from the Office of Governor Tim Pawlenty, dated February 13, 2008, at 2.
[99]
[100]
[101]
[102] Comments of Trimble & Associates, dated February 11, 2008, at 3.
[103]
[104] Comments of the Secretary of State, dated February 22, 2008, at 4-5.
[105]
[106]
[107]
[108]
[109]
[110]
[111] SONAR at 14.
[112]
[113] Exs. 11, 12, 13, 18, 19, and 22. See also, comments of MACO, dated February 20, 2008, at 2.
[114] Ex. 22.
[115] Comments of Trimble & Associates, dated February 11, 2008, at 4.
[116]
[117]
See, Piepho v. Bruns, 652 N.W.2d 40, 43 (
[118] Comments of Trimble & Associates, dated February 11, 2008, at 5.
[119] Comments of Representatives Brod and Emmer, dated January 23, 2008.
[120] Comments of the Secretary of State, dated February 22, 2008, at 11-12.
[121]
[122] Transcript at 74-75.
[123] Comments of the Secretary of State, dated February 14, 2008.
[124] SONAR at 16.
[125]
[126]
[127] Comments from the Office of Governor Tim Pawlenty, dated February 13, 2008, at 3.
[128]
[129]
[130]
[131] Comments of Trimble & Associates, dated February 11, 2008, at 5.
[132]
[133] Comments of Representatives Brod and Emmer, dated January 23, 2008.
[134] Exs. 11, 12, 13, 18, 19, and 22.
[135] Ex. 19.
[136] Comments of MACO, dated February 20, 2008, at 2-3.
[137]
[138] Comments of the Secretary of State, dated February 22, 2008, at 7.
[139]
[140]
[141]
[142]
[143] SONAR at 18.
[144] Comments of Trimble & Associates, dated February 11, 2008, at 6. Comments of Representatives Brod and Emmer, dated January 23, 2008.
[145] Comments of Representatives Brod and Emmer, dated January 23, 2008.
[146] Comments of MACO, dated February 20, 2008, at 3.
[147] SONAR at 19.
[148] Comments of Trimble & Associates, dated February 11, 2008, at 2. Comments of Representatives Brod and Emmer, dated January 23, 2008.
[149] Comments of Trimble & Associates, dated February 11, 2008, at 2.
[150] Comments of MACO, dated February 20, 2008, at 2.
[151] Comments of the Secretary of State, dated February 22, 2008, at 2 and 10.
[152] SONAR at 21.
[153] Comments of Trimble & Associates, dated February 11, 2008, at 6. Comments of Representatives Brod and Emmer, dated January 23, 2008.