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

During the 2020 election, the Minnesota Secretary of State’s office asked whether people could participate in county or municipal absentee ballot-board meetings in a role analogous to polling-place challengers. Assistant Attorney General Nathan Hartshorn answered no: “challengers do not have any role or authority within the ballot-board process.”

The opinion identified four statutes governing challengers. Minn. Stat. §§ 204C.07, 204C.12, and 204C.13 concern challenges within polling places. Minn. Stat. § 201.195 provides a separate contested-case process before a county auditor for a registered voter challenging another voter’s eligibility. None of those statutes authorized a challenger to take part in or state a challenge during a ballot-board meeting. The ballot-board provisions in Minn. Stat. §§ 203B.121 and .23 likewise contain no challenger procedure.

The opinion also quoted the Minnesota Supreme Court’s conclusion that state law does not grant a right to challenge ballot-board decisions. Under that ruling, the polling-place procedure in § 204C.13, subd. 6 was the only opportunity to challenge acceptance of an absentee ballot. The AG addressed the statutory challenger role. The opinion did not decide whether a person could physically attend a meeting as a nonparticipating observer.

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.

Historical context: what the AG concluded

Election administrators: The opinion said the challenger statutes did not authorize challenger participation in ballot-board proceedings. It did not prescribe a rule for general public attendance at meetings.

Political parties and candidates: Their authority to appoint challengers at polling places under § 204C.07 did not create a challenger role at ballot-board meetings.

Voters: The opinion distinguished ballot-board proceedings from the statutory procedure for challenges to absentee voters in polling places under § 204C.13, subd. 6.

Common questions

Could party-appointed challengers question individual ballot-board decisions at a board meeting?

No. The AG concluded that no identified statute gave challengers authority to participate in or state challenges during a ballot-board meeting.

Did the AG order ballot boards to exclude challengers from the room?

No. The opinion decided that challengers had no role or authority as challengers in the ballot-board process. It did not decide general physical attendance or observation rights.

Did Minnesota law provide another way to challenge a voter’s eligibility?

The opinion identified Minn. Stat. § 201.195, which let a registered voter challenge another voter registered in the same county through a contested case before the county auditor. That process had no specific connection to ballot-board proceedings.

Background and statutory framework

Minn. Stat. §§ 203B.121 and .23 defined ballot-board duties. The opinion found no reference to eligibility challenges or authorized challengers in those provisions. Minn. Stat. §§ 204C.07, 204C.12, and 204C.13 addressed polling-place challenges, while § 201.195 supplied a separate administrative process. The opinion concluded that none authorized participation as a challenger in a ballot-board meeting.

The opinion cited 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), for the absence of a right to challenge ballot-board decisions.

Citations and references

• Minn. Stat. § 201.195
• Minn. Stat. §§ 203B.121, .23
• Minn. Stat. §§ 204C.07, .12, .13
• 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)

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