During the 2020 absentee-heavy election, could political party representatives or campaign 'challengers' attend meetings of Minnesota county and city absentee ballot boards to observe and challenge the acceptance of individual absentee ballots, the way they can challenge voters at polling places?

Plain-English summary

In October 2020, with absentee voting reaching record levels because of the pandemic, Bibi Black at the Minnesota Secretary of State's office asked the AG whether political party-appointed "challengers" had any role in county and municipal absentee ballot board proceedings. Minnesota election statutes have long allowed parties, candidates, and campaigns to appoint challengers at polling places who can question whether a voter is eligible. The question was whether that polling-place authority extended into the ballot board room.

Assistant AG Nathan Hartshorn answered no.

The reasoning is statutory and short. Minnesota election law has four provisions about challengers:

• Minn. Stat. § 204C.07 authorizes political parties, candidates, and campaigns to appoint individual voters to act as challengers of voters "at the polling place in each precinct." It also regulates the qualifications and conduct of these polling-place challengers.
• Minn. Stat. § 204C.12 defines a process within a polling place for election judges, challengers, and other individuals to challenge a person attempting to vote.
• Minn. Stat. § 204C.13 regulates eligibility challenges before ballots are deposited in the boxes, by election judges or by anyone who was not in the polling place when the voter procured the ballot. Subdivision 6 has a specific provision for challenges to absentee voters who are not physically present.
• Minn. Stat. § 201.195 authorizes a registered voter to challenge the eligibility of another voter registered in the same county by initiating a contested-case hearing before the county auditor.

The AG found no other Minnesota statute that grants authority to challengers or regulates their activities.

The ballot board statutes, Minn. Stat. §§ 203B.121 and 203B.23, define the powers and duties of standard absentee ballot boards and military-and-overseas ballot boards. They contain no reference to challengers, no procedure for receiving challenges, and no provision for challenger presence at meetings.

The AG noted three of the four challenger statutes (204C.07, .12, .13) explicitly apply only to activities within polling places. Minn. Stat. § 200.02, subd. 12 defines "polling place" as "the place of voting." No Minnesota law states or implies that a ballot-board meeting is a polling place. The fourth statute, § 201.195, creates an administrative remedy with no specific connection to ballot boards.

The AG also cited the Minnesota Supreme Court's 2009 decision in In re Contest of General Election Held on Nov. 4, 2008, for Purpose of Electing a U.S. Senator from State of Minn., 767 N.W.2d 453, 468 n.19 (Minn. 2009), the case that arose from the Coleman-Franken U.S. Senate election. That decision held that state law does not grant anyone the right to challenge the decisions of a ballot board. The court relied on the time limits in § 204C.13, subd. 6, which were the only opportunity for an absentee-ballot challenge.

So the conclusion was that challengers have no role or authority within the ballot-board process.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular: Minnesota's election administration statutes are reviewed and adjusted by the Legislature regularly, especially after high-profile elections. The 2020 election produced significant litigation nationally and at least some state-level statutory and procedural responses. Anyone planning election observation or challenge activity should consult current statutes and Secretary of State election manuals.

What the opinion meant at the time

For election administrators and county auditors, the 2020 opinion was clear operational guidance: do not allow party-appointed challengers into ballot board meetings or proceedings. The ballot board members work through the statutory ballot-receipt-and-rejection process under §§ 203B.121 and 203B.23 without polling-place-style observation by partisan challengers.

For political party election lawyers preparing for the 2020 general election, the opinion clarified that pre-existing Minnesota law did not give challengers ballot-board access. To get observation rights, the party would need a court order, a Secretary of State election manual provision, or a separate accommodation. The AG opinion foreclosed an argument that ballot-board access flowed automatically from the polling-place challenger statutes.

For the Minnesota Secretary of State's office, the opinion supported existing administrative practice. Ballot boards were not polling places; the rules for the former applied.

For civic-engagement organizations and election observers, the opinion's takeaway was that party-credentialed challenger access did not extend to ballot boards. Other observation roles (member of the ballot board, election judge, member of the public watching from outside) had to be considered separately.

For voters whose absentee ballots might be challenged, the 2020 opinion reinforced the Coleman-Franken (Minn. 2009) framework: the polling-place procedure in § 204C.13, subd. 6 is the only opportunity to challenge acceptance of an absentee ballot. Outside that narrow procedure, no general challenge right exists.

For election law scholars and policy advocates, the opinion identifies a structural gap: parties have polling-place challenger rights but not ballot-board observation rights, even as absentee voting expanded dramatically. The opinion documents the statutory architecture but does not endorse it as good policy; that question is for the Legislature.

Common questions

Q: Can a member of the public, or media, attend a ballot board meeting?
A: The opinion does not address general public access. Other Minnesota open-meeting law principles may apply, but ballot-board operational meetings often involve confidential voter information and may not be subject to the same open-meeting rules as a typical board. Consult the Secretary of State's election manual and local counsel.

Q: Can a member of a political party serve on the ballot board itself, and exercise challenge-like discretion from inside?
A: Yes. Minnesota statute requires ballot boards to be staffed and may include members appointed by political parties. The opinion does not address that role; it addresses external challengers seeking observation or challenge rights from outside the board.

Q: Has the Legislature changed this since 2020?
A: The opinion is dated October 2020 and may not reflect subsequent legislative changes. Check current versions of §§ 203B.121, 203B.23, 204C.07, 204C.12, 204C.13, and 201.195. The Secretary of State's election manual is the most current operational guide.

Q: What about challenges to absentee ballots after they have been accepted but before counting?
A: § 204C.13, subd. 6 governs this. Election judges deciding whether to deposit received absentee ballots in the ballot boxes apply the same review standards used for absentee ballots generally. Challengers (in the polling-place sense) can initiate challenges before deposit, but the procedure runs through election judges, not through a party-credentialed observer in the ballot board room.

Q: What were the practical implications for the 2020 election?
A: Ballot boards counted and processed millions of absentee ballots in 2020 without polling-place-style challenger presence. Disputes that arose were channeled through the existing court-challenge mechanisms (post-election contests, recounts, individual ballot-eligibility lawsuits) rather than through a real-time challenger role. The Coleman-Franken case in 2009 had already shaped the statutory framework toward post-election rather than real-time challenge.

Q: Does this opinion bind subsequent administrations?
A: No. AG opinions are persuasive authority. A future AG could revisit the question, and the Legislature could change the statutes. As of October 2020, the opinion was operative.

Q: How does this fit with federal election observation rules?
A: Federal election law (the Voting Rights Act and various federal statutes) gives the Department of Justice observation authority in some circumstances. This opinion addresses Minnesota state-law challenger authority, not federal observation. The two regimes coexist.

Background and statutory framework

Minnesota's election challenger statutes were enacted decades before the modern absentee-voting infrastructure. They imagined challenges occurring at polling places where the voter, election judges, and challengers are all physically co-located.

Minn. Stat. § 204C.07 lets political parties, candidates, and campaigns appoint individual voters to act as challengers at the polling place in each precinct. The statute regulates who can be a challenger (qualifications) and how they may conduct themselves (conduct).

Minn. Stat. § 204C.12 defines an interrogation process within the polling place that allows election judges, challengers, or others to question a voter's eligibility. The process is interactive and assumes the voter is physically present.

Minn. Stat. § 204C.13 governs eligibility challenges before ballots are deposited. Subdivision 6 specifically addresses challenges to voters who are not in the polling place because they voted by absentee. The procedure runs through election judges, who then receive or reject the ballot according to the standards in Minn. Stat. §§ 203B.121 and 203B.24.

Minn. Stat. § 201.195 provides a parallel administrative remedy: a registered voter can challenge another voter's eligibility through a contested case before the county auditor, with appeal to the Secretary of State. This is not a polling-place or ballot-board procedure.

Minn. Stat. §§ 203B.121 and 203B.23 govern the ballot boards themselves. Section 203B.121 covers standard absentee ballot boards; section 203B.23 covers military and overseas absentee ballot boards. Neither references challengers or contains any procedure for receiving real-time challenges.

The Minnesota Supreme Court's 2009 decision in In re Contest of General Election (the Coleman-Franken case) is the controlling case on absentee-ballot challenge rights. The court held that state law does not grant anyone the right to challenge ballot board decisions outside the narrow procedure in § 204C.13, subd. 6. The polling-place procedure described in that subdivision provides the only opportunity to challenge the acceptance of an absentee ballot.

The 2020 opinion synthesized this statutory architecture and the Coleman-Franken holding to conclude that challengers, in the traditional Minnesota sense, have no role in the ballot-board process.

Citations and references

Statutes:
- Minn. Stat. § 200.02, subd. 12 (polling place definition)
- Minn. Stat. § 201.195 (contested-case challenge)
- Minn. Stat. § 203B.121 (standard absentee ballot board)
- Minn. Stat. § 203B.23 (military and overseas absentee ballot board)
- Minn. Stat. § 203B.24 (absentee ballot review standards)
- Minn. Stat. § 204C.07 (appointment of challengers)
- Minn. Stat. § 204C.12 (challenge interrogation process)
- Minn. Stat. § 204C.13 (eligibility challenges)
- Minn. Stat. § 204C.13, subd. 6 (absentee-ballot challenge timing)

Cases:
- In re Contest of Gen. Election Held on Nov. 4, 2008, for Purpose of Electing a U.S. Senator from State of Minn., 767 N.W.2d 453, 468 n.19 (Minn. 2009) (the Coleman-Franken case)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/182-20201016.pdf

Original opinion text

Elections-Challengers: Challengers do not have any role or authority within the ballot-board process.

182
(cr ref 183)
October 16, 2020

Bibi Black
Office of the Secretary of State

Re: Request for Opinion Concerning Challengers in Ballot Board Proceedings

Dear Ms. Black:

I thank you for your October 5, 2020 letter requesting an opinion regarding an issue pertaining to Minnesota election statutes.

BACKGROUND

You note that Minnesotans are voting via absentee ballot in greater numbers in the 2020 election cycle than in previous cycles. You indicate that the question has arisen whether Minnesota law allows individuals to participate in the meetings of county and municipal ballot boards in a capacity that is analogous to polling-place challengers.

QUESTION

You request an opinion regarding whether challengers are allowed to participate in the meetings of absentee ballot boards and, if they are, what state law authorizes them to do.

LEGAL ANALYSIS

We answer your question in the negative. The duties and powers of ballot boards are defined by two sections in Minn. Stat. ch. 203B. See Minn. Stat. §§ 203B.121, .23. Meanwhile, as you note, only a small number of provisions within the state's election statutes regulate challengers. Specifically:

• Minn. Stat. § 204C.07 authorizes particular political parties, candidates, and campaigns to appoint individual voters "to act as challengers of voters at the polling place in each precinct." The statute also regulates the qualifications and conduct of these polling-place challengers.

• Minn. Stat. § 204C.12 defines an interrogation process that election judges, challengers, and other individuals may initiate within a polling place to challenge the eligibility of a person who is attempting to vote.

• Minn. Stat. § 204C.13 regulates eligibility challenges to individual voters when they are made in polling places "[a]t any time before the ballots of any voter are deposited in the ballot boxes, [by] the election judges or any individual who was not present at the time the voter procured the ballots, but not otherwise." Id. § 204C.13, subd. 6. The statute explicitly contemplates challenges being made to the eligibility of individual voters who are not present in the polling place because they voted by absentee ballot. Under the process described in the statute, a ballot cast by any voter who is not in the polling place when he or she is challenged must be received or rejected according to the standards that state law provides for reviewing absentee ballots.

• Finally, Minn. Stat. § 201.195 authorizes a registered voter to challenge the eligibility of another voter registered in the same Minnesota county by initiating a contested case hearing before the county auditor or his or her designee. The challenged voter may appeal an adverse decision of the county auditor to the Secretary of State.

I am not aware of any Minnesota statute other than the four listed above that grants authority to challengers or regulates their activities.

Notably, none of the above statutes explicitly or implicitly contemplate a challenger being present at, taking part in, or stating a challenge during a ballot-board meeting. Instead, three of the statutes above explicitly apply solely to activities conducted within polling places. No Minnesota law states or implies that a ballot-board meeting is a polling place. The fourth statute, meanwhile, creates an administrative remedy that has no specific connection to any other election proceeding.

By the same token, I am not aware of any Minnesota statute pertaining to ballot boards or their activities that contains any reference to eligibility challenges or to individuals authorized to make them.

Finally, the Minnesota Supreme Court has held that state law does not grant anyone the right to challenge the decisions of a ballot board. In re Contest of Gen. Election Held on Nov. 4, 2008, for Purpose of Electing a U.S. Senator from State of Minn., 767 N.W.2d 453, 468 n.19 (Minn. 2009). The court based this conclusion on the time limitations quoted above from Minn. Stat. § 204C.13, subd. 6. Under the court's ruling, the polling-place procedure described in section 204C.13, subdivision 6, provides the only opportunity to challenge the acceptance of an absentee ballot.

In light of the above, it is this Office's opinion that challengers do not have any role or authority within the ballot-board process.

I thank you again for your correspondence.

Sincerely,

/s/ Nathan J. Hartshorn
NATHAN J. HARTSHORN
Assistant Attorney General