When two Minnesota cities are voting whether to consolidate, and the vote is happening at the same time as a general election, does approval require a majority of everyone who showed up to vote that day, or just a majority of those who marked an answer on the consolidation question?

Plain-English summary

The cities of Minnetrista and St. Bonifacius were headed toward a November 7, 2000 referendum on whether to consolidate into a single new city named Minnetrista. The Minnesota Municipal Board (succeeded by the Office of Strategic and Long-Range Planning, called "State Planning") had initiated the proceedings in 1997 by its own motion under Minn. Stat. § 414.041, subd. 1(c). The Consolidation Study Commission recommended the merger. State Planning, by order effective January 18, 2000, accepted the recommendation, but the order was subject to council adoption and voter approval. Both city councils rejected the order, and within 90 days the voters of each city filed referendum petitions under § 414.041, subd. 6(d). The referendum was scheduled to coincide with the November 2000 general election.

Two attorneys representing the cities (R. Lawrence Harris and Thomas J. Radio) asked the AG to clarify what "majority of those voting" means under § 414.041, subd. 6(d) when the referendum sits on the same ballot as a general election. The statute said the order would be "deemed approved" if 10% of last-gubernatorial-election voters petitioned, and "a majority of those voting in the municipality approve."

The AG concluded that "majority of those voting" meant a majority of those who actually voted on the consolidation question, not a majority of every person who cast a general-election ballot for any office or question. The conclusion rests on three pieces of reasoning.

Currency note

This opinion was issued in 2000. 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

First, the longstanding general principle. The AG cited Dayton v. City of St. Paul, 22 Minn. 400 (1876), for the rule that, in matters of government, "an election, or a voting, whenever called for, is to be determined by the votes of those who vote to fill the office which is to be filled, or for or against the proposition which is to be adopted or rejected, and not by counting, on either side, those who do not vote at all." Non-voters are not counted against the proposition. A different rule requires "a clearly manifested intention" by the legislature, like the language requiring approval by "a majority of all the electors voting at [a particular] election" used in some constitutional amendment ratification provisions. Section 414.041, subd. 6(d) does not contain that kind of all-voters language.

Second, the structural posture. The November 7, 2000 election day involved at least two distinct electoral activities: the general election for various offices, and the consolidation referendum. State Planning chose to schedule the referendum at the general election for economy and voter convenience, but the two activities are doctrinally distinct. The Minnesota Supreme Court had endorsed this distinction in Godward v. City of Minneapolis, 190 Minn. 51, 250 N.W. 719 (1933), holding that a vote on a charter amendment was a separate special election even when held concurrently with a general election. The AG also cited 26 Am. Jur. 2d Elections § 409 for the proposition that submission of a special question at the same time as a general election does not change the question's character as a special-election proposition.

Third, the avoid-unreasonable-result canon. Minn. Stat. § 414.041, subd. 6 requires that a consolidation referendum ordered after a petition be held within six months of receiving the petition. Because of that timing, in most of the 24-month general-election cycle a consolidation referendum cannot coincide with a general election and must be held as a special election. If "majority of those voting" meant majority of all general-election voters, the standard for voter approval would depend on whether the petition happened to mature close to a general election or not. Two cities with identical petition support and identical merits could get different election standards just based on calendar timing. That arbitrary outcome would be an unreasonable result under Minn. Stat. § 645.17(1).

The opinion also addressed an argument from the requesting attorneys. They suggested that the legislature might have meant to require a higher standard (majority of all voters) when the city councils have refused to approve the order, on the theory that a higher bar should attach when there is council opposition. The AG was not persuaded. The "majority of those voting" language appears in both paragraph (a) (which can apply when councils approve) and paragraph (d) (which applies when councils disapprove). The same standard governs both. Under the alternative reading, the standard would depend on the calendar, not on council approval or disapproval, which is irrational.

The opinion notes that § 414.041, subd. 6(c) explicitly says approval requires "a majority of votes cast on the question" when the consolidation is initiated by board action and approved by the city councils, while paragraphs (a) and (d) say only "a majority of those voting." The AG read these as functionally equivalent rather than as evidence of legislative intent to apply a stricter standard to the council-rejection scenario.

Common questions

Q: Did this opinion resolve the actual November 2000 vote?
A: The opinion was advisory and answered the legal question. The article does not track the specific election result. Readers seeking that should consult Minnesota Secretary of State election archives or contemporary news from November 2000.

Q: What's the general principle about non-voters?
A: As stated by the Minnesota Supreme Court in Dayton v. City of St. Paul (1876) and repeated in this opinion, the general rule in elections is that the outcome is determined by those who actually voted on the question, not by counting non-voters as a no vote.

Q: When does an election require a majority of "all voters" at a general election?
A: As described in the opinion, only when the constitutional or statutory text expressly says so. The AG cited the post-1897 amendment to the Minnesota Constitution requiring constitutional amendments to be approved by "a majority of all the electors voting at [a general] election" as an example of language clear enough to depart from the Dayton general rule. Section 414.041, subd. 6(d) does not contain that kind of language.

Q: Does the analysis change if the referendum is held as a special election rather than coinciding with a general?
A: Under the AG's reading, no. Whether the referendum is on a special-election ballot or layered onto a general-election ballot, the relevant majority is the majority of those who marked an answer on the consolidation question.

Q: Was the Municipal Board still operating when this opinion was written?
A: No. The Municipal Board was abolished effective June 1, 1999 under Minn. Stat. § 414.11 (Supp. 1999). Its authority and duties transferred to the Office of Strategic and Long-Range Planning, called "State Planning" in the opinion. The successor agency's structure may have changed since 2000.

Q: Does the opinion address voter identification requirements or other ballot-validity issues?
A: No. The opinion is narrowly about the meaning of "majority of those voting" in § 414.041, subd. 6(d). It does not address the validity of any individual ballot or any voter-eligibility question.

Q: Are there cases since 2000 that may have changed this conclusion?
A: The opinion was issued in 2000. Statutes and case law may have evolved. Anyone applying this opinion to a current consolidation referendum should check the current text of Minn. Stat. § 414.041 and any subsequent appellate decisions.

Background and statutory framework

Minnesota's municipal consolidation framework, as it stood when this opinion was issued, is found in Minn. Stat. ch. 414. The Municipal Board (later State Planning) could initiate consolidation proceedings on its own motion under § 414.041, subd. 1(c). A consolidation study commission would investigate and make a recommendation. State Planning could accept the recommendation by order, but the order was effective only if the affected cities' councils adopted it and the voters approved.

The voter-approval mechanism set out in § 414.041, subd. 6, in the version in effect in 2000, provided several paths:

• (a) Petition-initiated referendum after council approval.
• (b) Referendum requirements and timing.
• (c) Board-initiated and council-approved consolidation, with the explicit "majority of votes cast on the question" standard.
• (d) Petition-initiated referendum after council disapproval. The order is "deemed approved" if 10% of last-gubernatorial-election voters petition and "a majority of those voting in the municipality" approve.

Section 414.01, subd. 6 (1998) is the umbrella voter-approval requirement.

The opinion's analysis applies the rule that statutory construction should avoid unreasonable results (Minn. Stat. § 645.17(1)) and the Dayton rule on counting voters.

The opinion is signed by Assistant Attorney General Kenneth E. Raschke, Jr., on behalf of AG Mike Hatch.

Citations and references

Statutes:
- Minn. Stat. § 414.01, subd. 6 (1998)
- Minn. Stat. § 414.041, subd. 1(c), subd. 6(a)-(d)
- Minn. Stat. § 414.11 (Supp. 1999)
- Minn. Stat. § 205.16
- Minn. Stat. § 645.17(1)
- 1897 Minn. Laws, ch. 185

Cases:
- Dayton v. City of St. Paul, 22 Minn. 400 (1876)
- Eikmeier v. Pipestone County, 131 Minn. 287, 155 N.W. 92 (1915)
- Godward v. City of Minneapolis, 190 Minn. 51, 250 N.W. 719 (1933)

Secondary:
- 26 Am. Jur. 2d Elections § 409

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/484e1-20001005.pdf

Original opinion text

CITIES: CONSOLIDATION: ELECTIONS: Voter approval of consolidation requires affirmative vote of majority of persons voting on the question. Minn. Stat. § 414.01, subd. 6 (1998).

484e-1
(Cr. ref. 185b-2)
October 5, 2000

R. Lawrence Harris
Melchert Hubert & Sjodin
121 West Main Street
Suite 200
Waconia, MN 55387

Thomas J. Radio
Hinshaw & Culbertson
Piper Jaffray Tower, Suite 3200
222 South Ninth Street
Minneapolis, Minnesota 55402-3336

Dear Mr. Harris and Mr. Radio:

In your letter to Attorney General Mike Hatch you relate substantially the following

FACTS

On March 3, 1997, the Minnesota Municipal Board by its own motion, pursuant to Minn. Stat. § 414.041, subd. 1(c), initiated consolidation proceedings between the City of St. Bonifacius and the City of Minnetrista. On August 5, 1997, the Minnesota Municipal Board appointed a Consolidation Study Commission chair and the members of the commission.

On June 4, 1999, the Office of Strategic and Long-Range Planning ("State Planning") as successor to the Minnesota Municipal Board received a report of the Consolidation Study Commission, which report recommended the consolidation of the City of Minnetrista and the City of St. Bonifacius into a new city named Minnetrista. State Planning held a public hearing on the Consolidation Study Commission report on July 28, 1999.

By order effective January 18, 2000 State Planning accepted the report of the Consolidation Study Commission and directed the consolidation of the City of Minnetrista and the City of St. Bonifacius into a single city, subject to adoption of the order by a majority vote of the respective city councils and voter approval.

[Footnote 1: Under Minn. Stat. § 414.11 (Supp. 1999) the Municipal Board was abolished on June 1, 1999, and its authority and duties were transferred to State Planning.]

Pursuant to Minn. Stat. § 414.041, subd. 6(c), if the consolidation proceedings are initiated by the Municipal Board's own motion the consolidation is not effective until adopted by the council of each municipality and approved by their qualified voters at a general or special election set according to law. The city councils of both St. Bonifacius and Minnetrista rejected the consolidation order. Within 90 days of the rejection of the consolidation order by the two councils, each city received a petition signed by ten percent or more of their resident voters who voted for governor at the last general election petitioning for a referendum on consolidation. Subsequent to receiving the petitions, the city councils met jointly with State Planning staff and set a referendum on the consolidation for the next general election, November 7, 2000.

Because each city council disapproved the consolidation order, the issue is being placed on the ballot pursuant to Minn. Stat. § 414.041, subd. 6(d) which provides as follows:

Notwithstanding a disapproval of the board's order for consolidation by a city council of an affected municipality required to approve the board's order in clause (a) or (c), the board's order for consolidation shall nevertheless be deemed approved by that city council if ten percent or more of the resident voters of that municipality who voted for governor at the last general election petition the city of council for a referendum on the consolidation as provided in clause (a), and a majority of those voting in the municipality approve the board's order for consolidation.

(Emphasis added).

You then ask substantially the following

QUESTION

Does Minn. Stat. § 414.041 subd. 6(d) require that the consolidation order be approved by a majority vote of all persons voting at the general election or a majority vote of all persons voting on the issue of consolidation?

OPINION

We answer your question in the negative. In our opinion the consolidation will be effective if it is approved by a majority of those who vote on the question of consolidation in each city.

Under Section 414.041 subd. 6(d), approval of consolidation must be by "a majority of those voting in that municipality." At first impression that language is ambiguous. It could be taken to refer to those voting on consolidation, or in the case of a referendum held at the same time as a general election, to all of those casting ballots for any office or question. In our view, that ambiguity must be resolved in favor of counting only voters on the consolidation question.

First, requiring majority approval of all voters would be contrary to long established principle. As noted by the Minnesota Supreme Court in Dayton v. City of St. Paul, 22 Minn. 400, 403 (1876):

It is the general rule, in affairs of government, that an election, or a voting, whenever called for, is to be determined by the votes of those who vote to fill the office which is to be filled, or for or against the proposition which is to be adopted or rejected, and not by counting, on either side, those who do not vote at all. To take a case out of this general rule requires a clearly manifested intention to apply a different one.

In that case, the court held that the requirement that a constitutional amendment to be ratified by "a majority of the voters present and voting," required only a majority of those voting on the amendment itself. The court contrasted the quoted language with other language in the same constitutional article, requiring that a call for a constitutional convention be approved by "a majority of all the electors voting at [the next general] election." Consistent with that distinction, decisions requiring a majority vote of everyone voting at general elections have construed constitutional or statutory language that expressly called for approval of a proposition by a majority of those "voting at [a particular] election." See, e.g., Eikmeier v. Pipestone Co., 131 Minn. 287, 155 N.W. 92 (1915) and cases discussed therein. In this situation, the statutory language does not expressly require that the consolidation be approved by a majority of all persons voting at a general election.

[Footnote 2: The Constitution was later amended to require that proposed constitutional amendments also be approved by "a majority of all the electors voting at [a general] election." (1897 Minn. Laws, ch. 185.)]

Second, it is important to remember that on November 7, 2000, the voters of St. Bonifacius and Minnetrista will be able to participate in at least two different elections. One will be the general election for various national, state and local offices. The other will be the consolidation referendum. Though they could have been scheduled for different dates, State Planning, in consultation with both city councils, set the referenda at the time of the general election; presumably for reasons of economy and convenience of the voters. Nevertheless, they are distinct electoral activities. To construe section 414.041 subd. 6(d) as requiring consolidation approval by a majority of all electors voting in the general election would mean that the standard for voter approval could depend entirely upon the timing of a consolidation proposal. That timing, normally bearing no relationship to the merits of a consolidation proposal, would often be the result of arbitrary circumstances. In some circumstances, it could be subject to manipulation in an effort to affect the outcome of the election.

Under section 414.04, subd. 6, when a consolidation referendum is ordered as a result of a petition submitted by the voters, the election must be held within six months of the receipt of the petition. Id. paragraphs (a), (b), and (d). In the instant case, the timing of the State Planning order, and the petitions by the voters, were such that the referenda could be scheduled to coincide with the November biennial general election. However, such coincidental scheduling is possible for less than one-quarter of the 24-month general election cycle. For most of that time, a consolidation referendum would need to be held as a special election, apart from any general election. In those instances only persons going to the polls to vote in the special election could be counted. In our view, to require that a higher number of affirmative votes be cast only when the vote can be held at a general election due to the time when the issue arises would be an unreasonable result, not intended by the legislature. See Minn. Stat. § 645.17(1).

[Footnote 3: Given the statutory requirements for advance notice, referenda could not normally be ordered less than 45 days before an election. See Minn. Stat. § 205.16.]

This analysis is consistent with Godward v. City of Minneapolis, 190 Minn. 51, 250 N.W.719 (1933) where the court concluded that a vote on a charter amendment was to be viewed as a separate special election even though held concurrently with a general election. See also 26 Am. Jur. 2d Elections, § 409 which reports in part:

Where it is contemplated that a proposition may be submitted at either a general or special election, the fact that, for convenience, it is submitted at the former, does not alter the character of the election as a special election, and therefore a majority only of the votes cast on the special question, although less than those cast for officials, is sufficient. (footnote omitted)

Finally, we have considered that section 414.041 subd. 6(c) states that a consolidation initiated by municipal board action and approved by the city council; will be effective if favored at referendum by a majority of "votes cast on the question," but such explicit clarification is not contained in paragraphs (a) or (d), under which these referenda are to be held. In your letter you suggest that such an omission could indicate legislative intent to require only a majority of those voting on the question when the city councils have already approved the consolidation, but to require a higher standard when the councils have not so approved. That argument is not persuasive.

The "majority of those voting" requirement in paragraphs (a) and (d) is not limited to instances when the city council has failed to approve. It also applies to petition-initiated elections when the councils did approve. Id., par. (a) and (b). As noted above, if the alternative construction were adopted, the standard for computing the requisite voting majority would depend on the arbitrary factor of timing, not council approval or disapproval.

For these reasons, it is our view that the consolidation proposal will be adopted if approved by a majority of the voters voting on that proposal.

Respectfully submitted,

MIKE HATCH
Attorney General

KENNETH E. RASCHKE, JR.
Assistant Attorney General

AG: 408731,v. 01