Last year, the ACLU sued the Minnesota Secretary of State, Steve Simon, in Ramsey District Court. The purpose of the suit was to try to make the state allow felons to vote prior to completing their parole or probation.
The ACLU’s case seeks a court order “enjoining the Secretary to immediately and permanently take steps to ensure that all individuals who have been convicted of a felony, including those convicted of violent crimes” be allowed to vote. Yet the Minnesota Constitution expressly prohibits a felon from voting prior to the restoration of their ‘civil rights.’
But there’s a problem for groups opposed to getting rid of Minnesota’s current standard—requiring felons to complete probation or parole before they can vote. The problem is that the Minnesota Secretary of State Steve Simon, and Minnesota Attorney General Keith Ellison, don’t disagree with the ACLU. Among some conservative groups, then, there was a fear that Simon and Ellison wouldn’t properly defend Minnesota law.
That appears to be the case. Usually, private groups have no special right to file lawsuits to overturn laws, or the Minnesota Constitution. Because of this, the state—when defending laws—routinely asserts the initial defense that the plaintiff’s case has a “lack of private cause of action.” Since there’s black letter law to back of this defense, the defense works to toss the party suing the state out of court.
According to MVA: “The U.S. Court of the Appeals in a 2016 decision in Eggenberger v. West Albany Township dismissed claims brought under the Minnesota Constitution by interpreting the Minnesota Constitution not to authorize citizens to file lawsuits against government officials. It is the Eggenberger case that the Attorney General’s Office has relied on to dismiss case after case after case.”
Yet in this case, Attorney General Ellison didn’t assert this defense, which would likely have shot down the ACLU’s case altogether.
Because of this, the Minnesota Voters Alliance (MVA) filed a Notice of Limited Intervention late last year. MVA is asking the Ramsey County District Court to allow MVA to be an “intervenor defendant” in the case, in order to assert the defense which the state has waived—that the Minnesota Constitution does not provide the ACLU with the right to sue the government in this case.
On January 30th, in front of a packed courtroom, Judge Richard Kyle Jr. denied MVA’s motion to intervene.
According to MVA: “Consequently, we have filed an appeal to the Minnesota Court of Appeals, and, at the same time, filed a request to the Minnesota Supreme Court seeking expedited review in the hopes of addressing an even broader problem, one of equal access to the courts.”
MVA also says that the Minnesota Supreme Court “needs to weigh in on this critical situation that has arisen out of differing interpretations by the state and federal courts.”
MVA believes their suit is necessary because the “ACLU, Minnesota Attorney General Keith Ellison, and Minnesota Secretary of State Steve Simon are on the same team,” and are trying to overthrow “160 years of the Minnesota Constitution.”
“Having failed to change the law in the legislature, they are now using the courts to create approximately 52,000 more Democrat voters which is the number of felons expected to be given voting rights under this unconstitutional proposal,” says the MVA.
According to MVA, no less than self government is at stake: “It is very difficult to understate the importance of the MVA’s involvement in this case and to understate the importance of this case to Minnesota’s self-governance. In Minnesota, it has been commonly understood that the state legislature, not the courts interpreting the State Constitution, determine what types of lawsuits citizens can bring.”
In other words, if the courts and the attorney general get to decide which cases can go forward and which cases can’t, then they will favor only cases that align with their political—and left wing—interests.
Attorney for MVA, Erick Kaardal, explains this further:
“One of the problems with the Minnesota courts’ current ad hoc jurisprudence on this topic is subject matter discrimination and viewpoint discrimination.”
The Minnesota Courts have chosen some subject areas, abortion regulation and education equity, to allow some claims under the Minnesota Constitution. But, this is subject matter discrimination. If citizens can bring lawsuits under one part of the state constitution, they should be able to bring lawsuits under every part of the Constitution.
There is also a concern about viewpoint discrimination. Thus, even if the Minnesota Courts allow claims under the Minnesota Constitution in a subject area, there could be discrimination against certain viewpoints. For example, lawsuits seeking felon voting rights under the Minnesota Constitution would be allowed; but, lawsuits restricting felon voting rights under the Minnesota Constitution would be dismissed. There really is no way to systematically correct for this type of judicial bias without a legislatively-enacted state civil rights act treating all citizen lawsuits the same.
So, the MVA’s involvement in this case has epic, long-term consequences for Minnesota’s self-governance as well as Minnesota’s elections. The MVA is doing its best to accelerate the judicial process so that everyone knows the rules they must live by—and to preserve election integrity.”
Willis Krumholz
Willis L. Krumholz is a fellow at Defense Priorities. He holds a JD and MBA degree from the University of St. Thomas, and works in the financial services industry. The views expressed are those of the author only. You can follow Willis on Twitter @WillKrumholz.
