By Kristi Breyfogle

Minnesota Voter Alliance (MVA) filed suit in court alleging that the Minnesota Secretary of State was illegally allowing convicted felons and other ineligible voters to vote in the 2016 election.  According to MVA, the Secretary of State wrongly ordered election officials to give ballots to those marked as ineligible on the voter rolls provided that they swear an oath that they are actually eligible to vote. Under Minnesota law, the secretary of state has discretion to adopt and implement rules that are consistent with state and federal laws in regards to election procedures. In Minnesota, a person convicted of a felony is ineligible to vote until their civil rights have been restored.  This means convicted felons cannot vote until they have been released from prison and have completely finished their sentences, including any parole or probation.  When a registered voter commits a felony or is otherwise ineligible to vote, the voting roster marks that person’s right to vote as “challenged.”

According to the 2016 Election Judge Guide, if a person is marked “challenged,” the election judge should then follow the “Roster Challenge Procedure” to see if the person should be granted a ballot. First, the election judge is required to ask, “Do you solemnly swear (or affirm) that you will fully and truly answer all questions put to you concerning your eligibility to vote at this election?” In cases where the person is “challenged” under a felon status, the election judge is required to ask, “Are you on probation or parole for a felony conviction?” If the person answers yes or refuses to answer the second question, the election judge must mark the person as ineligible and refuse to give a ballot.  A similar procedure is applied to others who are prohibited from voting, including those who were found by a court to be legally incompetent or under certain types of guardianships.

Should the courts allow this policy in elections? Minnesota is caught in a battle between ballot security and ensuring access to ballots. For those who are against the policy, it appears to encourage voter fraud and threatens the integrity of the election.  Technically, it would be relatively easy for a person who is not eligible to vote.  All the person would have to do is lie and state that they are no longer under probation or parole.  Once the ballot is cast, it is treated just like any other ballot. There would be no way to remove the ballot if the voter is later determined ineligible.  This concerns people who are worried about the integrity of the election. There has been evidence that convicted felons have illegally voted in past elections.  In 2008, some estimated that 393 to 1093 ineligible felons voted in the election in Minnesota. The exact numbers are unclear. From 2009 to October 2011, however, 144 people, including felons ineligible to vote, were convicted of voter fraud in Minnesota. This casts integrity concerns on election results, especially considering that Al Franken narrowly won his 2008 United States Senate race by 312 votes.

However, there are some reasons why courts should not decide that this procedure is illegal.  First, while some felons may take advantage of the procedure, it is still illegal for felons who have not completed their sentence to vote.  If an ineligible person votes in an election, that person is risking a felony conviction.  The election judges are still supposed to keep ineligible voters from voting in the election. They are taking some steps to ensure that voters are qualified to participate.  The real debate is over the effectiveness of the enforcement mechanism, not whether elections officials should actually enforce the law.  If election officials flatly refused to give those with a “challenged” status a ballot, this creates another issue where the state may deny eligible voters, who are incorrectly labeled, the right to vote.  It should also be noted that some data suggests that ineligible felons voting is probably very rare.  It most likely accounts for much less than one percent of the total vote in Minnesota.  While it still may tip the scales in very close elections, it will probably not be enough to change the outcome in most races.

What could the state do instead?  In 2016, there has been legislation to change when felons are eligible to vote in Minnesota elections.  In April, the Minnesota Senate passed a bill that would allow felons to regain the right to vote after they were released from prison.  The codification of this bill would theoretically solve part of this dispute because any felon not currently in prison would have the right to vote.  Fourteen other states and the District of Columbia already have this rule in place.  Two other states, Maine and Vermont, do not restrict felons from voting at all.  Also, the state could offer a provisional ballot to “challenged” voters. Many states offer provisional ballots when it is not immediately clear whether a voter is eligible to vote.  In fact, Minnesota is one of three states that does not have any form of provisional voting.  In other states, the provisional ballots are only counted once the voter’s eligibility is verified.  Minnesota could adopt these practices to ensure future elections are both secure and fair.

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