STATE OF MINNESOTA

DISTRICT COURT

COUNTY OF RAMSEY

SECOND JUDICIAL DISTRICT

Merle Larson, a Ramsey County election

judge,
Petitioner,
v.

Case Type: Other Civil

Court File No.: 62-CV-16-6109
Judge: Shawn M. Bartsh
ORDER DENYING PETITIONERS
MOTION FOR A TEMPORARY
RESTRAINING ORDER

Steve Simon, in his official capacity as

Secretary of State, Joe Mansky, in his official
capacity as Ramsey County Elections
Manager,
Respondents.
STATE OF MINNESOTA

DISTRICT COURT

COUNTY OF HENNEPIN

FOURTH JUDICIAL DISTRICT

Donald B. Bumgarner, a Hennepin County

election judge,
Petitioner,
v.

Case Type: Other Civil

Court File No.: 27-CV-16-15170
Judge: Shawn M. Bartsh
ORDER DENYING PETITIONERS
MOTION FOR A TEMPORARY
RESTRAINING ORDER

Steve Simon, in his official capacity as

Secretary of State, Virginia Gelms in her
official capacity as Hennepin County
Elections Manger,
Respondents.

STATE OF MINNESOTA

DISTRICT COURT

COUNTY OF ST. LOUIS

SIXTH JUDICIAL DISTRICT

Gerald Kortesmaki, a St. Louis County

election judge,
Petitioner,
v.

Case Type: Other Civil

Court File No.: 69DU-CV-16-2621
Judge: Shawn M. Bartsh
ORDER DENYING PETITIONERS
MOTION FOR A TEMPORARY
RESTRAINING ORDER

Steve Simon, in his official capacity as

Secretary of State, Phillip Chapman in his
official capacity as St. Louis County elections
manager,
Respondents.

The above-entitled matters came before the Honorable Shawn M. Bartsh, Judge of District
Court, on November 4, 2016, at 1:30 p.m. on Petitioners1 Motion for a Temporary Restraining
Order. Erick Kaardal, Esq., appeared on behalf of Petitioners. Nathan Hartshorn, Esq., appeared
on behalf of Respondent Steve Simon, Robert Roche, Esq., appeared on behalf of Respondent Joe
Mansky, Daniel Rogan, Esq. appeared on behalf of Respondent Virginia Gelms and Nora
Sandstad, Esq. appeared on behalf of Respondent Phillip Chapman. The hearing concluded at 5:00
pm. Based upon the filings, records, and proceedings herein,
IT IS HEREBY ORDERED:
1. Petitioners Motion for a Temporary Restraining Order is DENIED.
2. The attached memorandum is incorporated into this order.
BY THE COURT:

Dated: November 7, 2016

______________________________
Shawn M. Bartsh
Judge of District Court

The submissions by the filing party [Petitioners] identified the parties as Petitioner and Respondents, not Plaintiff
and Defendant, therefore the Court will identify them likewise.

MEMORANDUM
Voting in elections is a constitutional right, and Minnesota's election officials bear the
solemn responsibility and duty to enforce the constitutional and legislative requirements for the
exercise of that right. See, e.g., Kahn v. Griffin, 701 N.W.2d 815, 832 (Minn. 2005). This Court
can think of no right of citizenship that is more central to our system of democracy than the right
to vote. This right serves as a foundation for our entire system of elected governance. America
stands out in the world as a shining beacon of democracy which has at its core the right of the
citizens of our country to determine our government through the election process.
In this motion for a temporary restraining order, Petitioners, election judges, ask the Court to
issue a temporary restraining order to state: The Court hereby issues a temporary restraining order
prohibiting Respondents from requiring the Petitioner to provide ballots to ineligible felons, wards
and non-citizens, marked as challenged on the precinct roster, who self-certify.2 Petrs Prop.
Order for TRO 1.
I.

Factual Background.
A.

The Parties.
Court File 62-CV-16-6109
Petitioner Merle Larson identifies himself in his petition as a person who will
be a Ramsey County election judge at the November 8, 2016, election.
Respondent Steve Simon is the Minnesota Secretary of State.
Respondent Joe Mansky is the Elections Manager for Ramsey County.
Court File 69DU-CV-16-2621
Petitioner Gerald Kortesmaki identifies himself in his petition as a person who
will be a St. Louis County election judge at the November 8, 2016, election.

By self-certify, the Court understands Petitioners to be referring to Minn. Stat. 204C.12 by which a registered
voter who has been identified on the polling place rosters as challenged is placed under oath by an election judge
and then questioned as to his/her eligibility to vote.
2

Respondent Steve Simon is the Minnesota Secretary of State.

Respondent Phillip Chapman is the Elections Manager for St. Louis County.
Court File 27-CV-16-16038
Petitioner Donald Bumgarner has yet to file his petition, therefore the court
has no information as to his status other than the representation by his
counsel that he is an election judge. For purposes of this motion, the Court
will presume he will be an election judge in Hennepin County for the
November 8, 2016, election.
Respondent Steve Simon is the Minnesota Secretary of State.
Respondent Virginia Gelms is the Elections Manager for Hennepin County.
B.

The Petition and Motion for Temporary Restraining Order.

On October 28, 2016, Petitioners filed their Verified Petition[s] Seeking Writ, or
Alternatively, Injunction Against Respondents in the 2nd, 4th, and 6th Judicial Districts.3 In those
petitions each sought the following relief: 1) a writ of quo warranto prohibiting Respondents from
requiring the Petitioner(s) to provide ballots to ineligible felons, wards and non-citizens who selfcertify; 2) a writ of mandamus requiring the Respondents to allow the Petitioner(s) to limit
Minnesota Statute 204B.44 challenge process to exclude self-certification of ineligible felons,
wards and non-citizen. 3) an injunction prohibiting Respondents from requiring the Petitioner(s)
to provide ballots to ineligible felons, wards and non-citizens who self-certify.4) a declaratory
judgment that the Respondents have exceeded their statutory authority under Minnesota Statute
204B.44 by requiring Petitioner(s) and other election judges to provide ballots to ineligible felons,
wards and non-citizens who self-certify. 5) Award Petitioners statutorily-allowed attorneys fees
and costs.

On November 3, 2016, Chief Justice Gildea issued an order assigning the cases brought in Hennepin and St. Louis
County to Judge Shawn M. Bartsh, Judge of the 2 nd District.

On October 28, 2016, Petitioners filed Motions for a Temporary Restraining Order.
II.

Minnesota Election Laws and Ineligible persons.

Both the Petitions and this motion implicate Minnesota election laws therefore, prior to

addressing the motion at hand the Court will review the election laws relevant to this petition and
motion. At the core of the petition is the concern that ineligible persons are being given ballots and
being allowed to vote and that by being part of the process, these election judges risk prosecution
for aiding and abetting a person in committing a felony.4
While there are several qualifications to be an eligible voter, the Petitions focus on the
law regarding those person deemed ineligible to votefelons, wards, and those deemed legally
incompetent by a court of law.
A.

Minnesota Election Law Eligibility to Vote.

Under our elections law and constitution there are many requirements for a person to be
eligible to vote: Those requirements are determined by our constitution and the election laws of
this state and are identified in Minn. Stat. 201.014 which reads as follows:
Subdivision 1. Requirements. Except as provided in subdivision 2, an individual
who meets the following requirements at the time of an election is eligible to vote.
The individual must:
(1) be 18 years of age or older;
(2) be a citizen of the United States; and
(3) maintain residence in Minnesota for 20 days immediately preceding the
election.
Subd. 2. Not eligible. The following individuals are not eligible to vote. Any
individual:
(1) convicted of treason or any felony whose civil rights have not been restored;
(2) under a guardianship in which the court order revokes the ward's right to vote;
or
(3) found by a court of law to be legally incompetent.
4

Minn. Stat. 201.014, subd. 3 provides: Any individual who votes who knowingly is not eligible to vote is guilty of
a felony.

Subd. 3.Penalty. Any individual who votes who knowingly is not eligible to vote
is guilty of a felony.
(emphasis added).
Our election laws strive to ensure that eligible voters are allowed to vote while
safeguarding against ineligible voters who seek to vote. This is reflected in our statutes in Minn.
Stat. 201.071, subd. 3 which includes the following directive: No eligible voter may be
prevented from voting unless the voter's registration application is deficient or the voter is duly
and successfully challenged in accordance with section 201.195 or 204C.12. Minn. Stat.
201.071, subd. 3 (2014).
B.

Challenged status of Registered Voters.

Pursuant to Minn. Stat. 201.021 and 201.022 (2014) the Secretary of State maintains a
statewide voter registration system (SVRS) to facilitate voter registration and to provide a central
database containing voter registration information from around the state. Each SVRS record
includes a status field that records the state of the registered voters registration. (Poser Aff.
9.) These status fields do not carry the designation eligible or ineligible. (Poser Aff. 9, 16-19.)
Rather, a registered voters status may be marked challenged based on information various state
agencies provide to the Secretary of State.
SVRS records are used to print the polling-place rosters used in Minnesota polls on
Election Day. Minn. R. 8200.9115, subp. 1 (2015). For each registered voter with a challenged
SVRS status, the polling place roster notes the existence and nature of the challenge. Id.; see also
Minn. R. 8200.9300, subp. 7 (2015). The process whereby a registered voter is designated as
challenged was described recently by the Supreme Court:
Data on people registered to vote are maintained in the system and are updated
based on the information provided to the Secretary of State by several government

entities, including the Department of Health, the Department of Public Safety, the
State Court Administrator, and the Department of Corrections. See Minn.Stat.
201.13, subds. 11a, 201.14, 201.15.158 (2014). As part of the updating process,
county auditors must change the status of registered voters to reflect the status
reported by these entities, including marking registered voters as challenged for
felony convictions, or removing a challenge from the voter's record if a felon has
been discharged from a sentence. See Minn.Stat. 201.157.158. A master
list of registered voters, updated with the information provided to the Secretary of
State, is provided to each county auditor at regular intervals, including in advance
of absentee and in-person voting. Minn.Stat. 201.091 (2014).
Minnesota Voters All. v. Simon, 885 N.W.2d 660 (Minn. 2016).
That the statutes designate a registered voter as challenged, not ineligible as advanced
by Petitioners, makes sense for three reasons.
First, it acknowledges the constitutional right of citizens to vote as being paramount.
Second, it implicitly recognizes the potential for mistakes to be made in the collecting,
reporting and transmitting of datae.g. a name may have been misspelled, a date of birth entered
incorrectly, or a person misidentified. Thus a registered voter may mistakenly be identified on the
polling place roster as challenged when in fact he/she is eligible to vote.
Third, even if a registered voter had been correctly identified as being ineligible on the date
the records were transmitted, the persons status may have changed between the date the record
was sent to the Secretary of State and Election Day. Petitioners erroneously assert that the records
transmitted to the Secretary of State reflect the persons status on Election Day. There is simply
no basis for this assumption. The data is only valid as of the date it was sent and does not take
into account any changes in status between the date the information was sent and Election Day.
In the intervening time a person may have completed his/her sentence, their rights may have been
restored, they may have been deemed competent by a court or they may have been granted
citizenship. Unless they are allowed to come to the polls to certify that as of the date of the election
they are eligible, they would be precluded from exercising their constitutional right to vote.

III.

Election Judges Statutory Duties.

A.

Election Judges Oath to follow the law Minn. Stat. 204B.21.

The process for appointing election judges is governed by Minn. Stat. 204B.21. Under
that statute, election judges must be appointed 25 days before the election. Id. 204B.21, subd. 2.
Each election judge shall sign the following oath before assuming the duties of the office:
I .......... solemnly swear (or affirm) that I will perform the duties of election judge
according to law and the best of my ability and will diligently endeavor to prevent
fraud, deceit and abuse in conducting this election. I will perform my duties in a
fair and impartial manner and not attempt to create an advantage for my party or
for any candidate.
Minn. Stat. 204B.24.
In taking this oath, election judges swear/affirm that they will follow the laws of the state.
If they believe those laws to be wrong they have every right to challenge them in court or to lobby
for change at the legislature. As sworn election judges they do not have the right to refuse to follow
them.
B.

Challenges by election judges - Minn. Stat. 204C.12.

The election laws place several safeguards into the system of elections to ensure that
ineligible voters do not vote. An important part of that process is the human oversight element
given to both election judges and authorized challengers. Each of them can challenge a person
seeking to vote, albeit under different standards. Minn. Stat. 204C.12 provides in relevant part:
Subdivision 1.Manner of challenging.
An election judge shall, and an authorized challenger or other voter may, challenge
an individual whom the person knows or reasonably believes is not an eligible
voter.
Subd. 2. Statement of grounds; oath.
A challenger must be a resident of this state. The secretary of state shall prepare a
form that challengers must complete and sign when making a challenge. The form
must include space to state the ground for the challenge, a statement that the

challenge is based on the challenger's personal knowledge, and a statement that the
challenge is made under oath. The form must include a space for the challenger's
printed name, signature, telephone number, and address.
An election judge shall administer to the challenged individual the following oath:
"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?"
The election judge shall then ask the challenged individual sufficient questions to
test that individual's residence and right to vote.
Subd. 4. Refusal to answer questions or sign a polling place roster.
A challenged individual who refuses to answer questions or sign a polling place
roster or voter signature certificate as required by this section must not be allowed
to vote. A challenged individual who leaves the polling place and returns later
willing to answer questions or sign a polling place roster or voter signature
certificate must not be allowed to vote.
Subd. 5. Election judges; penalty.
An election judge who fails to carry out the duties prescribed by this section is
guilty of a gross misdemeanor.
Minn. Stat. 204C.12 (2014) (emphasis added). Minn. Stat. 204C.12, subd. 1 imposes an
affirmative duty on all election judges to challenge those they either know, or reasonably believe
is not an eligible voter. The designation of a registered voter as challenged on the polling place
roster gives an election judge reason to believe that the person may be ineligible to vote.
In addition to the duty of election judges to challenge voters regarding his/her eligibility to
vote, others can challenge a persons eligibility to vote as well.
Minn. Stat. 204C.12 provides that an authorized challenger may challenge a persons
eligibility to vote. See id. 204C.12.
Minn. Stat. 201.195 allows any registered voter to challenge the eligibility or residence
of any other voter registered within that county. See id. 201.195.
IV.

Standard for Temporary Restraining Order.

A temporary injunction is an extraordinary equitable remedy. Metropolitan Sports

Facilities Commn v. Minnesota Twins Pship, 638 N.W.2d 214, 220 (Minn. Ct. App. 2002),

review denied (Minn. Feb. 4, 2002). Its purpose is to preserve the status quo5 until adjudication of
the case on its merits. Miller v. Foley, 317 N.W.2d 710, 712 (Minn. 1982); Pickerign v. Pasco
Marketing, Inc., 228 N.W.2d 562, 564 (Minn. 1975).
The party seeking the injunction must demonstrate that there is an inadequate legal
remedy and that the injunction is necessary to prevent great and irreparable injury. U.S. Bank v.
Angeion Corp., 615 N.W.2d 425, 434 (Minn. Ct. App. 2000) (citing Cherne Indus., Inc. v. Grounds
& Assocs., Inc., 278 N.W.2d 81, 91 (Minn. 1979), review denied (Minn. Oct. 25, 2000)). In this
regard the Court would note that our Supreme Court recently addressed the issue of a remedy in a
case raising the same issues. In Minnesota Voters All. v. Simon, the Supreme Court held:
The petition and the initial responses raise allegations about the administration of
one of the most important rights and obligations of citizens. But the allegations of
the petition do not demonstrate that proceedings in the district court, followed by
appellate review if sought, will not suffice to protect this interest. Rather, the
specific facts and circumstances of this case demonstrate that a district-court forum
is available to petitioners and proceedings in that forum, followed by any needed
appellate review, can provide an adequate remedy.
885 N.W.2d 660 (Minn. 2016) (emphasis added).
Because a temporary injunction is granted prior to a complete trial on the merits, it should
be granted only when it is clear that the rights of a party will be irreparably injured before a trial
on the merits is held. Miller v. Foley, 317 N.W.2d 710, 712 (Minn. 1982); Pickerign v. Pasco
Marketing, Inc., 228 N.W.2d 562, 564 (Minn. 1975); North Central Public Service Co. v. Village
of Circle Pines, 224 N.W.2d 741, 746 (Minn. 1974); Thompson v. Barnes, 200 N.W.2d 921, 924
(Minn. 1972).
The party seeking a temporary injunction bears the burden of demonstrating that injunctive

In this instance, Petitioners are not asking the Court to preserve the status quo pending a full hearing on the merits
of the case. Rather, they are seeking to change the status quo. Petitioners did not dispute that the process at the heart
of this case has been in place upwards of forty years.

10

relief is appropriate. See Angeion Corp., 615 N.W.2d at 434. In support of their motion for a
temporary restraining order, the Petitioners offered the following evidence:
1. 2016 Election Judge Guide (Petition, Ex. A).
2. 11/04/2014 State General Election Nov. 04, 2014, Minneapolis W-4 P-04 (Petition,
Ex. B) which was represented to be an exemplar polling place roster of registered
voters, showing an example of the notation Challenged Felon next to the name of a
registered voter.
3. Pages 1, 18, and 19 of Respondent Manskys Memorandum of Law in Support of
Motion to Dismiss filed in Court File No.: 62-CV-16-5711. (Petition, Ex. C.)
4. A photo copy of an undated letter from Gary Poser, Director of Elections with the
Minnesota Secretary of State. (Decl. of Erick G. Kaardal, Ex. A.)
It is important to note what Petitioners did not provide by way of any affidavits, testimony or
evidence in support of their motion. In this case, the Court was provided no proof that:

The persons designated as challenged on the 2016 polling place rosters will be
ineligible to vote on November 8, 2016;

that any of the persons designated as challenged on the 2016 polling place rosters
will, if challenged by an election judge, lie about his/her eligibility to vote;

that any of the Petitioners have or will intentionally aid or abet a person in
committing a felony should that person lie about his/her eligibility to vote;

that any of the Petitioners have in fact suffered any emotional or psychological
harm; or

that any election official had ever been prosecuted for following the procedures set
forth in under Minn. Stat. 204C.12.

11

V.

Analysis The Dahlberg Factors.

The Court must consider the following five factors when determining whether to issue an

injunction: 1) the nature and background of the relationship between the parties prior to the request;
2) the harm to be suffered by plaintiff if the temporary restraint is denied as compared to that
inflicted on defendant if the injunction issues; 3) the likelihood of success on the merits; 4) public
policy consideration; and 5) the administrative burdens involved in judicial supervision and
enforcement. Dahlberg Bros., Inc. v. Ford Motor Co., 137 N.W.2d 314, 32122 (Minn. 1965).
1.

The nature and background of the relationship between the parties preexisting
the dispute giving rise to the request for relief.

Neither side addressed whether the parties had any prior relationship, therefore the Court
will state the relationship as set forth in the Petition.
Case File No.: 62-CV-16-6109:
Petitioner Merle Larson identifies himself as an election judge in Ramsey
County.
Respondent Steve Simon was named in his official capacity as Minnesota
Secretary of State. He was further identified as the person responsible for
drafting and publishing the 2016 Election Judge Guide.
Respondent Joe Mansky was named in his official capacity as the Elections
Manager for Ramsey County. The Petition identifies him as the one who
distributes the 2016 Election Judge Guide to election judges.
Case File No.: 27-CV-16-16038:
Petitioner Donald Bumgarner identifies himself as an election judge in
Hennepin County.
Respondent Steve Simon was named in his official capacity as Minnesota
Secretary of State. He was further identified as the person responsible for
drafting and publishing the 2016 Election Judge Guide.
Respondent Virginia Gelms was named in her official capacity as Elections
Manager for Hennepin County. The Petition identifies her as the one who
distributes the 2016 Election Judge Guide to election judges.

12

Case File No.: 69DU-CV-16-2621:

Petitioner Gerald Kortesmaki identifies himself as an election judge in St. Louis
County.
Respondent Steve Simon was named in his official capacity as Minnesota
Secretary of State. He was further identified as the person responsible for
drafting and publishing the 2016 Election Judge Guide.
Respondent Phillip Chapman was named in his official capacity as Elections
Manager for St. Louis County. The Petition identifies him as the one who
distributes the 2016 Election Judge Guide to election judges. At the hearing,
Respondent stated he was not the election official with any oversight of
Petitioner, but rather, that the Duluth Elections manager should have been
named instead.
The court deems this factor to be neutral.
2.

The harm to be suffered by plaintiff if the temporary restraint is denied as

compared to that inflicted on defendant if the injunction issues.

An injunction will not be granted to prevent a mere assumption of a possible result; rather,
some irremediable damage must be shown. Hideaway, Inc. v. Gambit Invs. Inc., 386 N.W.2d 822,
824 (Minn. Ct. App. 1986) (citing Independent Sch. Dist. No. 35 v. Engelstad, 144 N.W.2d 245,
248 (Minn. 1966)). Because a temporary injunction is granted prior to a complete trial on the
merits, it should be granted only when it is clear that the rights of a party will be irreparably injured
before a trial on the merits is held. Miller, 317 N.W.2d at 712 (citing Pickerign, 228 N.W.2d at
564; North Central Public Service Co., 224 N.W.2d at 746; Thompson, 200 N.W.2d at 924 (1972)).
The party seeking an injunction must establish that legal remedies are inadequate and that an
injunction must issue to prevent great and irreparable injury. Metro. Sports Facilities Comm'n, 638
N.W.2d at 222.
The concept of irreparable harm was discussed by the U.S. Supreme Court in Sampson v.
Murray, where the court said, The key word in this consideration is irreparable. Mere injuries,

13

however substantial . . . are not enough. 415 U.S. 61, 90 (1974). The lack of a showing of
irreparable injury may be a sufficient ground for determining that the district court abused its
discretion in granting a temporary injunction. Metro. Sports Facilities Comm'n, 638 N.W.2d at
222 (Minn. Ct. App. 2002) (citing Morse v. City of Waterville, 458 N.W.2d 728, 730 (Minn. Ct.
App. 1990)).
In their Memorandum in Support of Motion for Temporary Restraining Order, the
Petitioners identified the harm they would suffer if not granted this injunction to be:
The Petitioner does not want criminal sanctions for participating in an ineligible
felon, ward or non-citizen voting on November 8, 2016. the (sic) Petitioner is
significantly personally affected emotionally, psychologically and otherwise -by the Respondents legal requirements and the corresponding potential criminal
sanctions if Petitioner adheres to the Respondents requirements that Petitioner give
a ballot to ineligible felons, wards and non-citizens who self-certify.
(Petrs Mem. Supp. Mot. TRO 1718.) Petitioners first assert they will be liable for a crime if
[he] facilitates an ineligible voter voting. (Id. at 3.) In support of this, they cite to Minn. Stat.
609.05liability for crimes of another, otherwise known as aiding and abetting. Subdivision I of
the statute provides: A person is criminally liable for a crime committed by another if the person
intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to
commit the crime. Minn. Stat. 609.05, subd. 1 (2014).
The crime for which Petitioners believe they may be found to have aided and abetted is
found in Minn. Stat. 201.014, subd. 3 which states: Any individual who votes who knowingly
is not eligible to vote is guilty of a felony. Id. 201.014, subd. 3 (2014).
Underlying this asserted harm is Petitioners assumption that every person who has a status
as challenged is in fact ineligible on the date of the election. As discussed above, the Court does
not find this assumption to be grounded in fact. Rather than assuming all persons with the
challenged status are ineligible, as do Petitioners, our laws have a process in place to verify the

14

persons status on the day of the election.

While Petitioners asserted they will face criminal sanctions for participating in an ineligible
felon, ward or non-citizen voting on November 8, 2016, this ignores Minn. Stat. 204C.12, subd.
4, which makes it a gross misdemeanor for an election judge to not follow Minn. Stat. 204C.12
and challenge any individual they knows or reasonably believes is not an eligible voter. Id.
204C.12, subd. 1.
The Court does not find the harm as asserted by Petitions to rise to the level of irreparable
harm, but rather to be a mere assumption of a possible result. Hideaway, Inc., 386 N.W.2d at
824. In order to be found guilty of a crime under Minn. Stat. 609.05, the state would need to
prove that the Petitioners intentionally aided, advised, hired, counseled, or conspired with or
otherwise procured the registered voter to commit the crime of voting when they knew they were
not eligible. If an election judge did intentionally do any of these things, they could potentially be
charged or convicted under the statute. However, those are not the assertions of Petitioners. Here,
Petitioners claim that by merely participating in a statutorily mandated process regarding
registered voters whose status is challenged they will face criminal prosecution. The Court does
not agree and finds any fear of criminal prosecution to be unfounded. Unless an election judge
knows that the person is lying about his/her eligibility to vote (which is a felony offense for that
person) and intentionally allows that person to vote, this Court cannot comprehend how they would
ever be convicted or charged of the crime of aiding and abetting. This fear is simply unfounded
and does not rise to the level of irreparable harm required in order for this Court to grant the
extraordinary relief sought.
The second harm asserted by Petitioners was that they were each personally affected
emotionally, psychologically, and otherwise by the Respondents legal requirements and the

15

corresponding potential criminal sanctions. As stated previously, [a]n injunction will not be
granted to prevent a mere assumption of a possible result; rather, some irremediable damage must
be shown. Hideaway, Inc., 386 N.W.2d at 824. Petitioners carry the burden to show irremediable
harm and cannot rest on mere assumption. The three Petitioners claiming the harm offered no
affidavits, testimony, or any evidence in support of the harm they allege. Petitioners Larson and
Bumgarner were present at the hearing but were not called to testify as to harm. The Court finds
Petitioners have failed to carry their burden of proof with regard to establishing this harm.
In contrast to the harm asserted by Petitioners, the Court does find there would be harm not
only to Respondents in their official capacity as election officials, but to the election process as a
whole. In their memorandum in support of their motions, Petitioners assert that if this Court issues
a restraining order only three election judges would be affected and Respondents would be able
to conduct elections exactly as they would have if the temporary restraining order had not been
issued. (Petrs Mem. Supp. Mot. TRO 18.) The Court does not find this to be convincing and
has little doubt that should the Court issue the restraining order it would, in short fashion, be
transmitted to election judges all across the state who would, in turn use it as authority to disobey
the law. The resulting chaos that this may cause to the Election Day process is significant and
weighs heavily against granting Petitioners motion.
Petitioners further asserted unless this restraining order was issued, other voters would be
harmed because ineligible persons would vote and therefore their vote would be diluted. Although
not parties to this action, our court has found that a court may consider harm to the public in ruling
on a temporary injunction. See Metro. Sports Facilities Comm'n, 638 N.W.2d at 222. Petitioners
offered no evidence in support of this claimed harm, but for purposes of this motion the court will
accept the proposition that eligible voters votes would be diluted if ineligible voters did in fact

16

vote. However, without being provided any basis for comparisone.g. the number of eligible
voters who vote versus the number of ineligible persons who voteit is difficult to gauge the
harm.
Any potential harm to voters of having their vote diluted by ineligible persons voting must
be balanced against the potential of eligible voters being denied their constitutional right to vote.
At the hearing, Petitioners acknowledged that if the Court granted the relief they are seeking that
eligible voters may in fact not be allowed to vote. This was a risk Petitioners were willing to accept.
This Court is not. Voting is not a privilege, but a constitutional right of all citizens. Even if the
Court accepts Petitioners allegations that ineligible person may lie in order to vote, that does not
justify this Court issuing an order that would deny even one eligible person their constitutional
right to vote. Our election statutes have built in protections to prevent ineligible individuals from
voting. They were designed to balance the constitutional right to vote against the potentiality of a
person either innocently or intentionally voting when he/she was not eligible.
Having considered the harm claimed by Petitioners, the court finds they have failed to
establish that they will suffer irreparable harm should the court not grant their motion. The lack
of a showing of irreparable injury may be a sufficient ground for determining that the district court
abused its discretion in granting a temporary injunction. Metro. Sports Facilities Comm'n, 638
N.W.2d at 222 (Minn. Ct. App. 2002) (citing Morse v. City of Waterville, 458 N.W.2d 728, 730
(Minn. Ct. App. 1990)).
3.

Likelihood of Success on the Merits.

Petitioner asserts that a temporary restraining order should be granted on this factor because
[t]he Respondents are in violation of Minnesota law by exceeding their statutory authority under
Minn. Stat. 204C.12. (Mem. Supp. Mot. for TRO 15). Further, Petitioners argue that

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[r]equiring an election judge to remove the challenge status of a felon or ward who self-certifies
essentially forces the election judge to ignore a court ruling6 and aid and abet in the felony of
voting while ineligible under Minnesota Statute 201.014, subdivision 3. Id. at 1011. This is
not an accurate reading of the law. First, only county auditors can remove the challenge status of
a registered voter, not an election judge. Second, election judges, unless they have personal
knowledge that the voter is ineligible on Election Day, have no basis for the assertion that they
would be disobeying a court order. Again, there may be instances where there is a mistake in the
data or the registered voters status may have changed since the data was last sent to the secretary
of state. An individual should have the right to present any change in status or correct any errors.
It is then the duty of the election judge to ask sufficient questions to test the eligibility of that
person to vote.
The Court understands that at this stage of the case Petitioners have not yet been able to
fully present their evidence in support of their claims, but under the Dahlberg factors, a court must
still analyze the likelihood of Petitioners succeeding on the merits. With the information the Court
has, the Court has doubts that the Petitioners will prevail on the merits. The evidence thus far
shows that the actions of Respondents were proper under the election laws of the State of
Minnesota. There is no evidence that any actions of the Respondents was aimed at allowing
individuals they knew to be ineligible to vote be given a ballot, including the guidance given in
the 2016 Election Judge Guide. To the contrary, the procedures set forth in the Guide follows
Minn. Stat. 204C.12 when it directs an election judge to challenge those persons identified on
the poling roster with a status of challenged.
At the hearing, Petitioners argued they should not be required to follow the 2016 Election

By this the court assumes Petitioners are referring to a court order revoking a ward's right to vote, or a court order
finding an individual to be legally incompetent. See Minn. Stat. 201.014 subd. 2.

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Judge Guide. The Secretary of State asserted that the guide, while not having the force of law, was
an accurate reflection of Minnesotas election laws. The focus on the Election Judge Guide is
misplaced. It is the election statutes, not the guide which requires election judges to follow the
procedure outlined in Minn. Stat. 204C.12.
In addition to the 2016 Election Judge Guide, Petitioners offered a photo copy of a letter
from Gary Poser, Director of Elections with the Minnesota Secretary of State. (Decl. of Erick G.
Kaardal, Ex. A.) In his declaration, Mr. Kaardal declared that Attached Exhibit A is a copy of
Minnesota Director of Elections Gary Poser correspondence to County Election Managers dated
November 2, 2016. That document contains the following statement:
M.S. 204C.12, not simply the OSS Election Judge Guide, requires an election judge
to ask a voter, who is listed on the roster as challenged for any reason, questions
regarding their eligibility to vote. Unless the answers to the questions indicate
ineligibility, the law requires that the election judge administer the roster oath and
allow the individual to vote.
Id. The Court finds Mr. Posers statement to be an accurate summary of Minn. Stat. 204C.12.
Petitioners also asserted that an election judge could only challenge a voter if they had
personal knowledge of the challenge, citing subdivision 2 of the Minn. Stat. 204C.12.
Subdivision 2 does not require an election judge to have personal knowledge in order to challenge
a registered voter who has the status of challenged. See Minn. Stat. 204C.12, subd. 2. The statute
clearly distinguishes between an election judges duties and an authorized challengers duties. See
id. Subdivision 2 requires an authorized challenger to have personal knowledgenot an election
judge. See id.
Minn. Stat. 204C.12, subd. 1 creates a duty on every election judge to challenge an
individual whom the person knows or reasonably believes is not an eligible voter. This duty is so
important that the legislature made it a gross misdemeanor for an election judge who fails to carry

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out the duties contained in this statute. Id. 204C.12, subd. 5.

Election judges hold a very important role in protecting the integrity of our electionsthey
are at the polling place and able to challenge voters they either know or reasonably believe to be
ineligible to vote. The system described by both parties whereby the precinct rosters carry
designations such as felon-challenged next to a registered voters name puts election judges on
notice that they need to follow the duties laid out in Minn. Stat. 204C.12. Namely, they need to
place the registered voter whose name carries the designation of challenged under oath and then
ask the individual sufficient questions to test that individuals residence and right to vote.
Petitioners focus on the self-certification of persons identified to the secretary of state
as felons, wards and those persons found to be incompetent ignores the fact that every person who
signs a polling place roster is required to self-certify that they are an eligible vote. Minn. R.
8200.9115, subp. 1 (2015). Voter registration applications require that an applicant self-certify that
they meet the eligibility requirements. Minn. Stat. 201.071. This certification is the primary
mechanism by which our election laws prevent ineligible persons from voting. Minn. Voters
Alliance v. Ritchie, 890 F. Supp. 2d 1106, 111213 (D. Minn. 2012). Taking Petitioners argument
to its logical conclusion, this court would have to find that election judges were committing crimes
as to all persons who self-certify and are not eligiblenot just those who status is designated as
challenged.
The Court finds that the facts do not support a finding that Petitioners are likely to succeed
on the merits, therefore this factor weighs against granting the temporary restraining order.
4.

Public Policy Considerations.

The constitution and the election laws of this state clearly establish the public policy that
all eligible voters have the right to vote. This Court is unwilling to issue an order that would prevent

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even one eligible voter from being able to cast his/her vote. The Court further finds that public
policy requires election judges who take an oath to follow the law must, in fact follow the law.
This is fundamental if the citizens of this state are to have faith in those persons serving as election
judges. If an election judge takes an oath to follow the law and then does not do so, it would
undermine the integrity of our election process.
Public policy considerations weigh in favor of denying the motion.
5.

The administrative burdens involved in judicial supervision and enforcement.

Petitioner argues that this factor is in favor of granting the temporary restraining order
because the administrative burden involved in judicial supervision and enforcement of the
temporary decree concerning Petitioner, concerning one election judge, is minimal. (Mem. Supp.
Mot. for TRO 19.)
The Court finds this factor to be neutral.
VI.

Laches
The equitable doctrine of laches prevent[s] one who has not been diligent in asserting a

known right from recovering at the expense of one who has been prejudiced by the delay. Winters
v. Kiffmeyer, 650 N.W.2d 167, 169 (Minn. 2002). Petitioner offered no explanation as to why these
petitions were filed ten days before the election. However, this Court, having found that the
Dahlberg factors do not support issuing a temporary restraining order, need not address the laches
argument for this motion.
VII.

Conclusion
In enacting the election laws of our state the legislature sought to balance the constitutional

right to vote with making sure ineligible voters were not allowed to vote. Those statutes require
that the secretary of state is notified of a registered voters status as a person (1) convicted of

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treason or any felony whose civil rights have not been restored; (2) under a guardianship in which
the court order revokes the ward's right to vote; or (3) found by a court of law to be legally
incompetent. In turn the secretary of state transmits that data to county auditors who then indicate
the persons status as challenged on the voters record. Our election laws then place a duty on
election judges to administer an oath to individuals with a challenged status and ask the person
questions in order to determine their eligibility. This process has been referred to as selfcertifying and is a process specifically established by Minnesota statutes.
Petitioners have volunteered their time to serve in this most important function of our
elections. As election judges, they have significant authority at the polling place. With that
authority comes responsibility to follow the election laws of this state. Election judges sign an oath
swearing that they will follow the law. The statue provides them guidance as to what they should
do to carry out that duty. Election judges, who swear to follow the election laws of this state,
should follow those laws including the following:

No eligible voter may be prevented from voting unless the voter's registration
application is deficient or the voter is duly and successfully challenged. Minn. Stat.
201.071 (2014).

An election judge shall challenge an individual whom the person knows or

reasonably believes is not an eligible voter. Minn. Stat. 204C.12.

An election judge shall administer to the challenged individual the following oath:
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?
The election judge shall then ask the challenged individual sufficient
questions to test that individual's residence and right to vote. Minn. Stat.
204C.12, subd.1.

If an election judge disagrees with the law their remedy is to challenge the law or seek
legislative changes through the legislature that created the lawsnot to disobey the law.

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The Court does not doubt the sincerity of Petitioners in their concern that ineligible persons
not be allowed to vote. As election judges they are in the perfect place to assure that does not
happen. While they cannot prevent a person from committing a criminal act should that person
intentionally lie about their eligibility to vote, an election judges duty is to follow the law which
requires them to challenge persons they either know or have reason to believe are not eligible to
vote. That is an important and vital function to our election process. The statute has safeguards in
place to prevent ineligible persons from voting while recognizing the constitutional right of
citizens to vote.
The Court finds that an analysis under the Dahlberg factors does not support granting a
temporary restraining order, therefore, Petitioners motion is denied.

Dated: November 7, 2016

SMB

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