Election law: Ritchie pitches rule changes, legislators prepare bills for 2010

Election law, once the province of civics wonks, has increasingly become the stuff of partisan political food fights. From the Supreme Court ruling on Bush v. Gore to the more recent outcry over ACORN’s role in falsifying voter registrations, both Democrats and Republicans cling to aggrieved suspicions of each other’s motivations.

Throw in a ridiculously close U.S. Senate race here in Minnesota–where the guy who was ahead on the initial election night vote counts was eventually declared the loser months later–and the partisan temperature can only.

The topic will be joined once again this Friday morning, when a public hearing will be held on the proposed rule changes in Minnesota election law submitted by Secretary of State Mark Ritchie. (Here is an SoS office page with details about the hearing and the rule changes Ritchie is proposing.)

Public comment is solicited at such hearings, and among those who will be speaking before Administrative Law Judge Manuel Cervantes is Kent Kaiser, the author of No Longer A National Model:  Fifteen Recommendations for Fixing Minnesota Election Law and Practice, an October report published by the conservative think tank The Center for the American Experiment.

Kaiser, a Ph.D. who currently teaches communication at Northwestern College in St. Paul, was the press spokesperson for Ritchie’s predecessor–and ideological opposite–Mary Kiffmeyer. In an op-ed for the Duluth News Tribune earlier this month, Kaiser expressed disappointment that Ritchie adopted only one of his recommendations (#13, which calls for using only the duplicate ballots in a recount so as not to confuse them with the originals that were somehow damaged enough to compel a duplicate to be made in the first place).

Detailed recommendations aside, the overarching point of Kaiser’s report was that the Norm Coleman-Al Franken recount produced enough flaws to tarnish the final result, and that the DFLer Ritchie is insufficiently gung-ho about reform because it might cast aspersions on the fact that Democrat Franken ultimately prevailed.

Not surprisingly, Ritchie is impatient with this line of reasoning. He cites three points to the contrary:

• a total of 36 regional meetings in which he solicited input from local election officials earlier this year;
• a report from the Citizen Jury on Election Recounts, a bipartisan group Ritchie cosponsored with Republican Rep. Laura Brod (New Prague);
• and an article from the Minnesota Free Market Institute, making the libertarian argument that some of Kaiser’s recommendations create more centralized government.

Kaiser also bruits his bipartisan credentials, acknowledging that he once voted for DFL-er-cum-Independent Tim Penny and pointedly noting that DFL Sen. Ann Rest (New Hope), the influential chair of the Senate’s  State and Local Government Operations and Oversight Committee, invited him over to talk about his report and expressed support for a number of his recommendations. (Rest declined to be interviewed for this story while she recovers from recent minor surgery.)

In the past several years, the central point of conflict over election law has boiled down to Democrats’ fears that excessive regulation of ballot access will depress the vote versus Republican claims that looser controls breed widespread voter fraud. In Minnesota, where the executive and legislative branches are frequently controlled by different parties, the resulting gridlock has prevented sweeping changes.

The prospect for election-law reforms at the Capitol are easier to predict this session than in most previous years, for a variety of reasons. First, some action has to be taken to conform to a new federal law designed to ensure that members of the military and other citizens living overseas have enough time and logistical support to participate fully in voting. That means more time between the statewide primaries and the general election.

Second, the current political landscape makes it almost certain that no highly partisan election-law reforms will survive the process. Pawlenty has vetoed major election law bills in two of the past three years. And this time the situation–a lame-duck governor pursuing national ambitions, a passel of legislators on both sides of the aisle jockeying to replace him–promises even more volatility.

In place of fruitlessly butting heads over voter identification cards and other red-flag issues, legislators have started to think about capitalizing on the momentum that will ensue from passing a bill that satisfies the federal guidelines on overseas voters. With the lessons of the months-long U.S. Senate recount still fresh in their minds, lawmakers and election officials are already striving to carve out a bill or bills devoted to consensual, non-controversial measures to address mutually agreed-upon flaws in the system.

“Last year there were so many tiny things to do–the system had become so complex it was constantly in need of updates, and we wound up with this lengthy bill,” says Sen. Chris Gerlach (R-Apple Valley), a member of the Senate’s Local Government Operations and Oversight Subcommittee. “But the Republicans argued that changes in the absentee ballots, for example, and many other things, would depend on the outcome of the Coleman and Franken litigation, which was going on at the time. So there was a party-line vote in the House and the Senate, and the governor said he wasn’t going to sign any election reforms without bipartisan support. And with no bipartisan support due to [the Republicans waiting for] the litigation, the bill was vetoed.

“But about three months ago, I was contacted by somebody, I don’t know who started it, but Ann Rest worked with Larry Jacobs“-the Director of the Center for the Study of Governance and Politics at the Humphrey Institute-”and got the Humphrey Institute to host and facilitate a working group to figure out what legislation we could pass.

“This wasn’t like a committee hearing, which are usually quite staged and contrived–this was educational. We brought in experts, people who were partisan and nonpartisan, and said, ‘Okay, how does this work?’ or ‘Why do it this way?’ And we went through all these little things that needed to be updated, piece by piece. And if everybody agreed, we put it in the green zone. If there was an argument and no agreement, we put it in a red bucket, and the ones we weren’t sure about went in a yellow bucket.

“We went through everything, from [DFL state Sen.] John Marty’s automatic voter registration to the most mundane housekeeping things,” Gerlach continued. “And we looked at whether it could be done by [Ritchie changing the] rules or whether it had to be done by the Legislature. We had the leaders of the committees from both the Democrats and Republicans. It was quite eye-opening.”

“Up to this point, we haven’t gone into anything too controversial or substantial, like no-excuse absentee voting,” Gerlach says. “We don’t know if we want to make that kind of commitment. But what I and some of the other legislators have signed on to do is pass the things that are noncontroversial and nonpartisan. I’m not saying there won’t be any amendments or heated words and debate-I don’t know what members of my caucus or the other side have in mind. But we can pass the housekeeping things everyone agrees on.”

As an example of housekeeping, Gerlach cited campaign finance laws that deal with reporting dates and the aligning of data. There are also things that Ritchie can do without legislative approval, such as updating and redesigning the absentee ballot for greater clarity, a change that is almost certain to be approved by the administrative law judge on Friday.

There are other elements that are mildly controversial, such as Ritchie’s desire to have any ballot recounts occur at the county level rather than at the precinct level, and Kaiser’s recommendation to count absentee ballots in one centralized location.

“The elections are run at the county level. They are responsible for the absentee voting, for the location of the machines, for the training,” Ritchie says. “When the Legislature decides to do something, it falls on the county to do it, which is why their views and recommendations and knowledge are so important to this process.

“They do such a great job under extreme conditions with these budget cuts and all these new people coming into the system. What I saw watching the election and then watching the recount made me convinced we had it right. Out of 2.92 million votes, there were only 14 totally disputed ballots–ones that went to a 3-2 vote by the State Canvassing Board.”

By contrast, Kent Kaiser recommends that the secretary of state be excluded from the State Canvassing Board and that he or she also be prohibited from making any political appointments to the secretary of state’s Office. Expect that idea to be tossed in the red bucket when legislators seek to create noncontroversial bills. But it will be aired on Friday–a hot-button item.