I. Unnecessary Litigation
In Minnesota, certain criminal offenses—violent and non-violent—called for up to 40 years of supervised release contingent on strict adherence to a minefield of conditions.
Felons on probation have to take random drug tests in order to stay out of lockup. They have to maintain housing and employment. They can’t have guns. And they’re not allowed to vote.
The American Civil Liberties Union believes that last one is indefensible.
Suing the state in October, the ACLU argued that disenfranchising felons does nothing to promote personal responsibility or social cohesion. Instead, voting forces people to care about their communities, which is why crime-fighting interests like the American Probation and Parole Association and the Minnesota County Attorneys Association also want the right restored.
If the ACLU wins its case in time, 52,000 probationers serving felony sentences will get to cast a vote in November’s presidential election, while those currently incarcerated will not. Sixteen other states follow that bright-line rule. (Maine and Vermont also allow inmates to vote from prison.)
Secretary of State Steve Simon, who directs elections, is being sued in his professional capacity. Attorney General Keith Ellison is his lawyer. But while the officials have to bat for the state in court, both have called for the law to change.
“People who are no longer deemed—if they ever were deemed—a threat, someone who needs to be cordoned off from the rest of society, have every right to determine who governs them and how,” Simon says. “To me, it’s about that fundamental aspect of life.”
Conservative activists quickly seized upon this apparent contradiction. Filing a request to intervene in the case, a self-identified election security group called the Minnesota Voters Alliance accused Simon and Ellison of not trying hard enough to defend laws they don’t like.
Why does the MVA care? The group hasn’t offered any reasons why felons shouldn’t have the vote. Instead, it argues that by failing to raise a nuclear defense that would immediately dismiss the ACLU lawsuit, Simon and Ellison were wasting taxpayer funds on unnecessary litigation.
What is that defense? The MVA claims Minnesotans can’t sue over violations of the state constitution because the state Legislature never enacted its own version of the federal law allowing people to sue for civil rights under the U.S. Constitution.
It sounds plausible, but isn’t true. Minnesotans who have successfully sued their government using the state constitution include a Coates strip club owner and a Minneapolis landlord left with a hole in his wall after police crashed through in an unexpected drug raid, among many others.
Oddly enough, MVA has also sued Minnesota before, alleging violations of its constitution. In fact, through its many lawsuits over the years, MVA has cost the state and its taxpayers a not-insignificant amount of money.
MVA didn’t respond to multiple requests for comment. Nevertheless, the group’s protracted wars in the courts and the polls leave little ambiguity about the thrust of their crusdade—invalidate voters.
II. Tilting at Windmills
Minnesota takes the cake for the highest voter turnout rates in the country. More than three-fourths of eligible voters usually participate in presidential elections—a solid C, but leagues above the failing national average of 55 percent.
For that, Minnesotans can thank a luxurious menu of options that make casting a ballot relatively hassle-free. It includes early voting, absentee voting, online registration, and Election Day registration. Managers of group homes, including battered women’s shelters whose residents shield their address from public records, can vouch for everyone living in the facility.
Not everybody appreciates the accommodations. A zealous hodgepodge of conservative activists believe that because Minnesota has wide-open voting laws, it must also suffer from the highest rates of voter fraud in America.
These activists have organized under many banners over the years, including Minnesota Majority, Election Integrity Watch, the North Star Tea Party Patriots, Minnesota Freedom Council, and Minnesota Voters Alliance, whose members and missions overlap.
Officially, they say they want to protect the sanctity of one man, one vote.
In practice, they’re given to saber-rattling against imagined incursions of vote-snatching felons and undocumented immigrants. In 2012 they championed a referendum to institute voter ID, which Minnesotans rejected after it caused consternation among the state’s nursing-home residents, many of whom have let their driver’s licenses lapse and don’t have copies of their birth certificates. Proponents also failed to name a single ID in existence that could prove voter eligibility. They’ve populated billboards and op-ed sections of newspapers around the state with conspiracies in want of evidence, claiming permissive laws and ambivalent prosecutors have buried the skeletons of stolen elections.
Over the years, a couple of leaders have emerged from the movement.
One is Dan McGrath, who once published an exposé alleging more than 2,800 people voted illegally in the 2008 election, tipping the scales for Barack Obama and Al Franken.
County attorneys across Minnesota were forced to review the list. Some hired extra staff. Soon, they ran into problems.
Investigations turned up people with common names who lived in the same precinct, as well as juniors and seniors living under the same roof. There was a college kid who voted without knowing mom had already turned in her absentee ballot. An 80-year-old who’d double-dipped. Homeless people couch-surfing.
“‘Are felons essentially deciding elections in Minnesota?’ That was their thesis. And their proof was all of this data,” recalls Dennis Gerhardstein, Ramsey County Attorney’s Office spokesman.
Between 2006 and 2011, or three general elections, 114 people out of 681,000 were convicted of ineligible voting in Ramsey County. That’s 0.01 percent.
Hennepin County charged only 38 out of 660,000 people who voted in 2010—0.005 percent.
Rates of ineligible voting convictions have stayed consistent—and statistically insignificant—through the years.
Hennepin County Attorney Mike Freeman says after the 2016 election, his office charged 43 people. All but one were felons who registered but didn’t actually vote. Some could have been nearing the end of probation and preparing to get their rights back. But because it’s another felony for a felon to even register, those at all confused about the rules were out of luck.
“That’s what a joke [McGrath’s exposé] was back then,” Freeman says. “Universally what we find is people making mistakes, not understanding.”
For the love of concision, he supports a bright-line rule: While you’re in prison you can’t vote; when you’re out, you can.
McGrath has since taken a backseat as spokesman for another election security warrior, Andrew Cilek, president of the Minnesota Voters Alliance.
Cilek is Tea Party famous for showing up to the polls in 2010 wearing a Gadsden flag T-shirt and a button reading, “Please I.D. Me.” Election judges objected. Minnesota law banned political clothing at the polls, but didn’t require voters to produce photo ID. Those in line might have read Cilek’s button, second-guessed what they knew of the law, and gone home. Cilek was jettisoned from the polls.
So he sued the state. In 2018, the U.S. Supreme Court vindicated him, throwing out Minnesota’s century-old voting dress code as overbroad. Minnesota lost $1.3 million in attorney fees. Cilek gets to wear whatever he wants.
Under McGrath and Cilek’s leadership, MVA has repeatedly gone to the courts to either erect speedbumps between people and the polls, or fight Twin Cities initiatives to encourage voter turnout.
It once accused Minneapolis’ ranked choice voting system of diminishing the strength of an individual’s first choice. That didn’t square mathematically.
Next, MVA filed a federal suit calling for some 22,000 disabled people under guardianship—who always get to vote unless there is a court order specifically revoking their right—to be examined for competency at the polls. A judge dismissed that suggestion without much discussion.
MVA then went after former Secretary of State Mark Ritchie for setting up an online voter registration system. State law permitted registration only in person or by mail. The court agreed and ordered the site taken down, but then the Legislature simply updated the law.
At the moment, MVA is battling Minneapolis and St. Paul, hoping to overturn ordinances mandating that landlords provide new tenants with information about voter registration because, “these ordinances violate landlords’ First Amendment right of free speech by forcing them to be agents of the cities’ ‘ideology’ that voter registration is good.” That lawsuit is ongoing.
Despite all their rage, MVA’s holy grail—proof of widespread voter fraud—remains elusive.
To prove their case once and for all, Cilek and McGrath plan to construct another independent audit, this time by obtaining complete data sets on felons and all Minnesotans registered to vote. This data will purportedly reveal the “true extent” of ineligible voting in Minnesota by identifying individuals who broke the law but weren’t prosecuted.
Secretary of State Steve Simon has given MVA certain voter data including things like name, address, and birth year. But he’s withholding other information such as whether red flags have ever been raised in the process of verifying a voter against various state and federal databases—“challenges” that warrant further investigation, but aren’t definitive proof of fraud. That data isn’t listed as “public,” but it’s not “restricted” either.
Oral arguments were made before the Minnesota Supreme Court in November after two lower courts ordered the state to fork over the data. If MVA prevails, the expectation is it’ll manipulate data to best serve its agenda just as McGrath’s report did 10 years ago.
After all, the activists have never acknowledged the problems with their “study,” which wasted significant law enforcement resources and misled the media. Nevertheless, they’re again keeping a tight lid on their methodology.
III. Lightning Odds
Elizer Darris is 35 years old. He’s never voted, and under current law, he won’t have the right to do so until 2025.
Darris was a 14-year-old runaway from St. Louis who roamed the country with a traveling carnival. At 15, while laid over in Polk County, he had a dispute with a drunk man about who’d win in a fight. Darris beat the man to death and left him in a field. He was sentenced to life in prison.
There, Darris earned a GED and a college degree. After 17 years, he won his release after successfully getting his first-degree murder conviction remanded to second-degree. Immediately, he went to volunteer for former State Sen. Terri Bonoff’s congressional campaign, and served as field operations director on former NAACP president Nekima Levy Armstrong's mayoral campaign. He now works as a motivational speaker and ACLU organizer for criminal justice reform.
He’s also a lead plaintiff in the American Civil Liberties Union’s voting rights restoration case.
“My desire is to be allowed to fully participate in the most run-of-the-mill action that allows us to call this nation a democracy,” he says. “I pay taxes. I obey all the laws. My family members’ children are going to school, but I can’t vote for any of those school board members that make the policies that affect them. It’s like being a ghost.”
Of the manifold laws that restrict his life, Darris admits voting wasn’t the most immediate of his concerns post-prison. He couldn’t visit his mother without permission. He had to maintain housing, which required a paying job—something of a catch-22. He had to check in with a probation officer on a weekly basis. Failing any one of those orders could land him back in prison on a technicality.
The idea that people who are hyper-aware that their freedom balances on a razor’s edge would risk it all to orchestrate voter fraud just isn’t practical, says Darris’ lawyer, David McKinney.
“I don’t know of anyone who would risk going to jail because of going to the voting polls.”
But if someone serving a felony were to vote, this is what would happen.
He’d show up at the polls and give his name. If he’s already in the Statewide Voter Registration System, a “C” for “challenged” would show up next to his record. He’d sign an affidavit swearing the database is wrong. He’d proceed to vote. After the election, police would verify that affidavit, and he’d get charged with a felony.
If he isn’t in the system, he could have a registered voter vouch for him. He’d sign an affidavit and get charged with a felony. So could the voucher.
He could impersonate someone who’s eligible to vote without their knowledge. If that person also votes, he’d be exposed and charged with a felony.
Fraudulent ballots from Election Day registrants can’t be clawed out of the final count. But the number of convictions that result from post-election investigations discredits the theory that there are many of them to begin with.
According to court records, a total of 92 felons have been convicted for casting a ballot in Minnesota since 2016, less than 0.001 percent of the total turnout—odds political scientists have compared unfavorably to winning the lottery or getting struck by lightning.
“If there were a bunch of cases slipping through the cracks, I just don’t know how that would happen,” says Hennepin County Elections Manager Ginny Gelms.
She doubts that members of the public could arbitrate whether someone has committed voter fraud—even if they obtained complete voter registration data—because a litany of human and computer errors can wrongfully flag innocent people as “challenged.”
Often, one of the many databases that feed into the voter registration system is slower or faster to update than another, and a person recently discharged from probation might still have a “C.” Sometimes, when people with felonies renew their driver’s licenses, the clerk behind the computer at the DMV will accidentally check the box to register them. Investigators have to track down the original paperwork.
As with almost all criminal code, prosecutors must also determine whether someone intentionally broke the law.
Nevertheless, plenty of people who claim ignorance of the law are still convicted of ineligible voting. In recent years, those hapless Minnesotans include a University of Minnesota student who tried to sell his vote on eBay for $10, a Minneapolis Community and Technical College student who voted for a Minneapolis City Council member when she lived in St. Louis Park, and a Wilmar man less than a month away from completing probation.
Proponents of a bright-line rule argue it would make it easier to differentiate between those who intend to break election laws, and those who get tripped up by the murky matrix of restrictions that govern the lives of probationers. Opponents say individuals should be responsible for keeping their heads above water.
In any case, if the court decides to grant felons the vote this year, it would disarm MVA’s impending public service announcement using registration data—whatever it says—to show how Minnesota’s elections are riddled with fraud.
IV. The Voter Fraud Dilemma
Hamline University Prof. David Schultz has taught election law for about 25 years. In the early 2000s, the topic of election-invalidating voter fraud came into vogue, and he became fascinated with the paradox it posed.
How could America reconcile dismal voter turnout and allegations that millions of criminals were rigging elections?
In 2016, when Donald Trump was the Republican presidential nominee, he preemptively blamed voter fraud in case he lost. After the election, when he’d won the electoral college but fell 3.5 million votes short of a popular mandate, he doubled down.
About half of states now employ voter ID laws after proponents claimed they would detect illegal voting. Yet none of those states have seen an uptick in convictions, Schultz says.
“You can’t say because there’s no voter ID, there’s no proof of voter fraud, and at the same time say voter IDs deterred fraud from occurring,” he says. “From a logical and social science perspective, those arguments are completely incoherent.”
With or without evidence, the mere accusation of fraud has convinced states to cull their voter rolls.
Wisconsin is on the cusp of purging hundreds of thousands of registered voters who failed to respond to a letter from its elections commission within 30 days. New Hampshire wants to restrict students by redefining “residence” to exclude college dorms. Though the people of Florida recently overturned ex-felons’ lifetime voting ban via referendum, their supreme court ruled that individuals must pay off all the fines and fees attached to their convictions—potentially tens of thousands of dollars—before they can hit the polls.
When purported election security vigilantes like Minnesota Voters Alliance oppose felons’ right to vote, they often can’t avoid throwing in an implicit assumption that underscores the whole point of their opposition: Felons are Democrats.
“There is a good reason liberal lawmakers and governors across the country are eager to pass laws allowing felons to vote. A recent study conducted by the Academy of Political and Social Sciences indicates that seven out of 10 convicts register as Democrats,” Andrew Cilek writes on the MVA website.
University of Minnesota Prof. Chris Uggen, whose research is frequently the foundation for this oft-repeated statistic, says the focus on partisanship is misplaced because “the short answer is, we don’t really know” how people on probation would vote if they could.
His 2002 study extrapolated the voting habits of Americans along race and income and applied them to the disenfranchised felon population. He concluded that felons, who are disproportionately poor and people of color, would be more likely than the general population to lean left.
He didn’t consider education nor the hometowns to which prisoners returned following their release. Not to mention how demographics of partisanship have shifted over the past two decades, Uggen says.
The 2016 election was extremely racially polarized. Trump was almost universally shunned by people of color, while a slight increase of poor white people turned out for him despite their historical penchant for the Democratic Party. Yet education proved to be a stronger factor than income. Trump’s core supporters were middle- and upper-class people without college degrees.
A more recent study out of Northwestern University found that people with felonies, like the rest of the general population, forge their partisan loyalties most strongly along race. It concluded that while upward of 70 percent of black men with records register as Democrats, white men with records behaved almost in mirror opposite.
In a state like Minnesota, where most prisoners and probationers are white, restoring the vote wouldn’t result in DFL ascendency. Just as North Dakota, Indiana, Ohio, and Utah aren’t liberal bastions despite adopting bright-line rules.
“Questions about the right to vote, which are really fundamental, shouldn’t rest on the likely voting behavior of those who would regain the vote,” Uggen says. “There’s been a ton of action on this issue largely around civil rights, rather than a partisan vote grab.”
Yet bills to restore the vote keep stalling in the Minnesota Legislature, compelling the ACLU to restage the fight in court, says ACLU lawyer Theresa Lee.
There are no fact disputes in its lawsuit against the state, just differing opinions of the law’s constitutionality. With no need for a jury trial, the judge could rule to restore felons’ voting rights in advance of November’s election.
But if MVA is allowed to intervene in the case, they’ll be folded into the proceedings like a third party, which can add costs and delay deadlines.
The judge will decide whether MVA has a case this spring.