If a Minnesota county wants to set up an in-person absentee voting site, does it have to keep that site open for the full 46 days before the election, or can it open the site for just the last week of voting?

Plain-English summary

Minnesota Secretary of State Steve Simon asked the AG whether a county auditor could designate an in-person absentee voting site for less than the full 46-day absentee balloting period, and whether the 2016-added alternative procedure in Minn. Stat. § 203B.081, subd. 3, allowed a separate site staffed only for the final seven days before the election. Assistant AG Nathan Hartshorn answered both questions on behalf of AG Keith Ellison.

The opinion identifies three permitted configurations for early voting sites under the statute:

1. Absentee-only site for 46 days. Under subd. 1, a site designated as an in-person absentee balloting location must be open for the entire 46-day absentee balloting period before the election.
2. Seven-day ballot counter + ballot box site. Under subd. 3, a county auditor may stand up a separate site that operates only during the seven days before the election. That site must have a ballot counter and ballot box, and voters at the site must be given the choice between the absentee procedure under § 203B.08, subd. 1 and the seven-day ballot counter / ballot box method.
3. Combined site. A single site can serve as both: open the full 46 days for absentee balloting, with the additional ballot counter / ballot box option available during the final seven days.

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

The opinion turned on a textual contrast between subdivisions 1 and 3 of § 203B.081 as the statute stood in 2020.

Subd. 1 provided that an eligible voter "may vote by absentee ballot in the office of the county auditor and at any other polling place designated by the county auditor during the 46 days before the election." The Secretary of State's office had long read that text to require any site designated for in-person absentee balloting to be open for the entire 46-day period. The AG accepted that reading. The reasoning was practical: if a county auditor designated a site under subd. 1 but kept it closed during part of the 46-day period, a voter presenting at the site during the closed time would be denied the right to absentee balloting that the statute grants at that "place and time."

Subd. 3 was added in 2016 by 2016 Minn. Laws ch. 161, art. I, § 2 (at 593-94). It authorized a county auditor to "make available a ballot counter and ballot box for use by the voters during the seven days before the election." When a county did so, voters at the site had to be given the choice between (1) the regular absentee process under § 203B.08, subd. 1, or (2) the alternative ballot counter / ballot box method described in subd. 3(b)-(e).

Putting the two subdivisions together, the AG concluded that the statute is more flexible than a single-period rule. A county auditor could pick:
- An absentee-only site, but only if it operates the full 46 days (subd. 1).
- A seven-day ballot counter / ballot box site that does not need to operate for the full 46 days (subd. 3). Voters at this kind of site must be permitted to vote either by the absentee process or the new ballot counter / ballot box method, in the same location.
- A combined site that does both, with absentee balloting available throughout the 46-day period and the ballot counter / ballot box option layered on during the final seven days.

The AG specifically allowed that a county could open a site under subd. 3 alone, without ever designating it under subd. 1. In that case the site would operate only during the seven days before the election.

Common questions

Q: Could a county auditor open an in-person absentee voting site for just the last two weeks of the absentee period?
A: As described in this opinion, no. A site designated as an in-person absentee balloting site under subd. 1 had to remain open for the full 46-day period. Partial openings were not permitted under subd. 1 alone.

Q: Could a county still offer voting only during the last seven days at a site?
A: Yes, under subd. 3 of the statute as it stood in 2020. The county had to provide a ballot counter and ballot box, and voters at the site had to be offered both the absentee process and the ballot counter / ballot box process as options.

Q: Could the same physical location serve both purposes?
A: Yes. The opinion describes a combined configuration in which a site operates as an in-person absentee location for the full 46 days under subd. 1, with the ballot counter / ballot box added under subd. 3 as an additional voting option during the final seven days.

Q: What's the practical difference between the absentee process and the ballot counter / ballot box process?
A: Absentee balloting under § 203B.08 involves the voter completing an absentee ballot envelope; the ballot is then transmitted to the home polling place for counting. The seven-day ballot counter / ballot box procedure under § 203B.081, subd. 3, allows the voter to insert their ballot directly into a counter and ballot box at the early-voting site, similar to election-day procedures. The opinion describes only the gist; consult current statutes for the operational details.

Q: Does the opinion address voter ID, absentee witness requirements, or eligibility?
A: No. The opinion is narrowly about whether and when a county auditor may designate early-voting sites and the temporal scope of each kind of site. The substantive rules on voter ID, witness signatures, and eligibility are governed by other statutes the opinion does not address.

Q: Is the AG's reading binding on county auditors?
A: AG opinions are advisory. Minnesota courts and election officials treat them as persuasive authority on questions of Minnesota election law, but they are not binding on courts or election challenges. A county auditor who relies on this opinion in setting up early-voting sites should also check current Secretary of State guidance.

Background and statutory framework

Minn. Stat. § 203B.081, subd. 1, in the text quoted in the opinion, provided:

An eligible voter may vote by absentee ballot in the office of the county auditor and at any other polling place designated by the county auditor during the 46 days before the election, except as provided in this section.

Minn. Stat. § 203B.081, subd. 3(a) provided:

The county auditor may make available a ballot counter and ballot box for use by the voters during the seven days before the election. If a ballot counter and ballot box is provided, a voter must be given the option either (1) to vote using the process provided in section 203B.08, subdivision 1, or (2) to vote in the manner provided in this subdivision.

Subdivision 3 was added in 2016 by 2016 Minn. Laws ch. 161, art. I, § 2 (at 593-94). The Secretary of State's office had developed a longstanding interpretation of subd. 1 before subd. 3 was added, and the question for the AG was how the new subdivision interacted with that older reading.

Section 203B.08, subd. 1, referenced by subd. 3(a), governs the absentee ballot marking process generally. The opinion does not analyze the contents of § 203B.08 beyond noting that subd. 3(a) of § 203B.081 cross-references it as one of the two voting options at a seven-day site.

The opinion does not cite any case law. It is a pure statutory-construction opinion using textual and structural reasoning to harmonize the original subdivision 1 with the 2016-added subdivision 3.

The opinion is signed by Assistant Attorney General Nathan J. Hartshorn on behalf of Attorney General Keith Ellison.

Citations and references

Statutes:
- Minn. Stat. § 203B.081, subd. 1
- Minn. Stat. § 203B.081, subd. 3 (including subds. 3(a), 3(b)-(e))
- Minn. Stat. § 203B.08, subd. 1
- 2016 Minn. Laws ch. 161, art. I, § 2, at 593-94

Cross-references in the opinion header:
- cr ref. 385a

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/185a5-20200102.pdf

Original opinion text

185a-5
(cr ref. 385a)

SECRETARY OF STATE: ELECTIONS: POLLING PLACES: County auditors may designate voting site(s) for early voting in three ways: (1) absentee balloting alone during entire 46-day period before election; (2) both ballot counter-ballot box voting and absentee balloting during 7-day period before election; or (3) absentee balloting during 46-day period, with additional voter option of ballot counter-ballot box voting during final 7 days of period. Minn. Stat. § 203B.081, subds. 1, 3.

185a-5
(cr ref. 385a)
January 2, 2020

Steve Simon
Minnesota Secretary of State
180 State Office Building
100 Rev. Dr. Martin Luther King, Jr. Blvd.
St. Paul, MN 55155-1299

Re: Request for Opinion Concerning

Dear Secretary Simon:

I thank you for your December 13, 2019, letter requesting an opinion regarding the meaning of Minn. Stat. § 203B.081, subdivisions 1 and 3.

FACTS

You report that the Office of Secretary of State has a longstanding interpretation of section 203B.081 that it has provided to county and local election officials when they have requested an interpretation. Under your Office's longstanding reading, section 203B.081 requires that any polling place designated by a county auditor for use as an in-person absentee balloting site must be open and available to the public for the entire 46-day absentee balloting period.

The legislature amended the statute to add subdivision 3 in 2016. 2016 Minn. Laws ch. 161, art. I, § 2, at 593-94. You note that your Office has not until recently considered the effect on your interpretation of the alternative procedure provided by the new subdivision.

You indicate that a number of jurisdictions are now establishing absentee voting locations for elections in 2020 that they intend to operate for less than the entire 46-day absentee balloting period. In this context, you ask whether section 203B.081 permits a county auditor to (1) designate a location for in-person absentee balloting that operates for only a portion of the 46-day absentee balloting period or (2) establish locations for the alternate procedures identified in subdivision 3 that have not also served as locations for in-person absentee balloting locations for the entire 46-day period.

LEGAL ANALYSIS

The statute in question provides, in pertinent part:

Subdivision 1. Location; timing. An eligible voter may vote by absentee ballot in the office of the county auditor and at any other polling place designated by the county auditor during the 46 days before the election, except as provided in this section.

[…]

Subd. 3. Alternative procedure. (a) The county auditor may make available a ballot counter and ballot box for use by the voters during the seven days before the election. If a ballot counter and ballot box is provided, a voter must be given the option either (1) to vote using the process provided in section 203B.08, subdivision 1, or (2) to vote in the manner provided in this subdivision.

Minn. Stat. § 203B.081, subds. 1, 3(a) (2018). The remainder of subdivision 3 describes the new alternative voting procedure. Id., subd. 3(b)-(e). Minnesota Statutes section 203B.08, subdivision 1, which is referenced in subdivision 3(a) of section 203B.081, governs the process by which voters mark and submit absentee ballots. Id. § 203B.08, subd. 1.

In response to your first question, subdivision 1 of the statute at issue provides that voters may vote by absentee ballot at "any polling place designated by the county auditor during the 46 days before the election." Id. § 203B.081, subd. 1. Your Office has long explained to county and local election officials that this provision requires any polling place designated by a county auditor for in-person absentee balloting to be open for the entire 46-day period referenced in the statute.

This appears to be the correct interpretation of subdivision 1. If, hypothetically, a county auditor designated a particular site for in-person absentee balloting under subdivision 1 but failed to keep it open to voters for some portion of the 46-day period, a voter presenting herself at that site during the portion of the 46-day period that the polling place was closed would then be denied the right to vote by absentee ballot at that place and time, even though Minn. Stat. § 203B.081, subd. 1, explicitly grants her that right. Accordingly, the answer to your first question is that a county auditor may not designate a location specifically for in-person absentee balloting that operates for only a portion of the 46-day period before the election.

In response to your second question, the new alternative procedures that the legislature created in 2016 are clearly intended to permit county auditors to designate additional locations with ballot counters and ballot boxes for use by voters only "during the seven days before the election." Id., subd. 3(a). In the event that a county auditor elects to maintain a site with a ballot counter and ballot box, subdivision 3 requires election officials to permit voters to vote either via the in-person absentee process or the alternative ballot counter and ballot box method. Id. Moreover, the clear intent of the provision is that a voter is to be permitted to vote in either of these manners in the same location. See id.

Thus, the answer to your second question is that, under Minn. Stat. § 203B.081, subd. 3, a county auditor may designate one or more locations that operate only during the seven days before the election and at which voters are permitted to cast ballots by either the in-person absentee process or the ballot counter and ballot box process.

If a county auditor designates a particular site for absentee balloting alone, that site is governed by subdivision 1 and must be available for use by voters for the entire 46-day period prior to the election. If, however, the county auditor provides a ballot counter and ballot box at a particular site, the auditor need not designate the site for absentee balloting under subdivision 1; instead, she can open it pursuant to subdivision 3 alone, which means permitting voting during the seven days before the election by either the in-person absentee process or the ballot counter and ballot box process. As a final alternative, a county auditor could elect to designate a particular site for voting under both subdivisions 1 and 3: that is, in-person absentee balloting during the entire 46-day period prior to the election and ballot counter and ballot box voting as an additional option during the final seven days of that period.

Very truly yours,

NATHAN J. HARTSHORN
Assistant Attorney General
(651) 757-1252 (Voice)
(651) 297-1235 (Fax)
[email protected]