|
|
4-6361-17234-CV |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
|
Bryan K. Olson, Complainant, vs.
Heather Worthington and Stacey Kreuser, Respondents. |
ORDER FINDING NO PRIMA FACIE VIOLATION AND DISMISSING COMPLAINT |
On April 19, 2006, Bryan K. Olson filed a Complaint with the Office of Administrative Hearings alleging Heather Worthington and Stacey Kreuser violated Minn. Stat. § 211B.11, subd. 1. This provision prohibits the displaying of campaign material or solicitation of voters at or near the polling place on election day.
The Chief Administrative Law Judge assigned this matter to the undersigned Administrative Law Judge on April 19, 2006, pursuant to Minn. Stat. § 211B.33. Copies of the Complaint were sent by United States mail to the Respondents on April 19, 2006.
After reviewing the Complaint and the attached documents, and for the reasons set out in the attached Memorandum, the Administrative Law Judge finds that the Complaint fails to set forth prima facie violations of Minnesota Statutes § 211B.11.
ORDER
IT IS ORDERED:
That the Complaint filed by Bryan K. Olson against Heather Worthington and Stacey Kreuser is DISMISSED.
Dated: April 20, 2006
|
/s/ Bruce H. Johnson |
|
BRUCE H. JOHNSON |
|
Administrative Law Judge |
Under Minn. Stat. § 211B.36, subd. 5 this Order is the final decision in this matter and a party aggrieved by this decision may seek judicial review as provided in Minn. Stat. § § 14.63 to 14.6.
MEMORANDUM
On November 8, 2005, the Complainant was one of four candidates, including a write-in candidate, running for two open seats on the Falcon Heights City Council. In addition to the City Council election, there was also a school board election in Falcon Heights on November 8, 2005. On election day, the Complainant and others observed several incidents at the City’s two polling places that the Complaint alleges violated Minn. Stat. § 211B.11, subd. 1. The incidents identified by the Complainant are as follows:
(1) an election judge at the polling place for Precinct 2 (Falcon Heights Elementary School) told a voter how to spell the write-in candidate’s name in response to the voter’s request for that information;
(2) an election judge at the polling place for Precinct 1 (Falcon Heights City Hall) directed a voter to go to the front counter of city hall to obtain candidate information;
(3) an election judge at the polling place for Precinct 1 directed a voter to go to the front counter of city hall to obtain information as to whether the write-in candidate was a candidate for school board or city council. A person “who fits the description of Stacey Kreuser, city clerk of Falcon Heights,” answered the voter’s question by responding with the phrase “city council;”
(4) newspapers that contained candidate information were available in the lobby of city hall, between the front counter and entrance to the polling place; and
(5) a flyer made by the city with the names of all four candidates for city council, including the write-in candidate, was posted on the bulletin board near the front counter alongside official sample ballots.
The Complainant came in third in the City Council race and lost the election. The write-in candidate, Pam Harris, came in second and was elected to the City Council.[1]
Minn. Stat. § 211B.11 governs election day prohibitions. Subdivision 1 of this section provides as follows:
Subdivision 1. Soliciting near polling places. A person may not display campaign material, post signs, ask, solicit, or in any manner try to induce or persuade a voter within a polling place or within 100 feet of the building in which a polling place is situated, on primary or election day to vote for or refrain from voting for a candidate or ballot question. A person may not provide political badges, political buttons, or other political insignia to be worn at or about the polling place on the day of a primary or election. A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day. This section applies to areas established by the county auditor or municipal clerk for absentee voting as provided in chapter 203B.
The secretary of state, county auditor, municipal clerk, or school district clerk may provide stickers, which contain the words “I VOTED” and nothing more. Election judges may offer a sticker of this type to each voter who has signed the polling place roster.
“Campaign material” is defined as “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election, except for news items or editorial comments by news media.”[2]
The Administrative Law Judge concludes that the Complaint fails to state a prima facie violation of Minn. Stat. § 211B.11. The Complaint is directed against the Falcon Heights City Administrator and Deputy Clerk. Yet, with the exception of one claim, the violations are alleged to have been committed by unnamed election judges. The Complaint contains no allegation that either Ms. Worthington or Ms. Kreuser was in any way responsible for these alleged violations.
More importantly, however, the instances listed above do not amount to violations of Minn. Stat. § 211B.11, subd. 1. This provision prohibits displaying campaign material or soliciting voters to vote a certain way at or near a polling place on election day. An election judge responding to a voter’s request for the spelling of the write-in candidate’s name does not amount to soliciting or inducing the voter to vote for that write-in candidate. Likewise, an election judge directing a voter to the front counter of city hall to “obtain candidate information” does not amount to soliciting a voter to vote in a particular manner. According to the documents attached to the Complaint, a staff person for the City of Falcon Heights posted a list of all four candidates’ names running for City Council. Such a list is not “campaign material” within the meaning of Minn. Stat. § 211B.01, subd. 2, because it was not disseminated for the purpose of influencing voting. If only one candidate’s name was posted on the bulletin board in the lobby of city hall, that may fit the definition of “campaign material” and amount to a violation of section 211B.11. But a complete list of all the candidates’ names cannot influence voters to vote for a particular candidate. Therefore, posting such a list did not violate Minn. Stat. § 211B.11, and directing a voter to such a list does not amount to soliciting or influencing voting in violation of section 211B.11.
Similarly, the fact that city staff did not remove from the lobby of city hall stacks of newspapers, such as the Park Bugle, that contained within its pages voter guides and letters to the editor with candidate information is not a violation of Minn. Stat. § 211B.11. This section prohibits the displaying of campaign material at a polling place on election day. A stack of newspapers in the front lobby of the city hall polling place is not a display of campaign material in violation of Minn. Stat. § 211B.11. In addition, news items or editorial comments by the news media are explicitly excluded from the definition of “campaign material.” Finally, the allegation that, in response to a voter’s question as to whether the write-in candidate was running for city council or school board, Ms. Kreuser responded “city council” does not amount to a prima facie violation of Minn. Stat. § 211B.11. Telling a voter that the write-in candidate is running for city council does not rise to the level or persuading or inducing the voter to vote for the write-in candidate.
The Complaint fails to allege prima facie violations of Minn. Stat. § 211B.11 by the Respondents and is dismissed.
B.H.J.