Minnesota Court of Appeals rejects voter lawsuit over witness requirement for absentee ballots

The Minnesota Court of Appeals ruled Monday that the witness requirement for Minnesotans to vote by absentee ballot does not violate the Voting Rights Act or the Civil Rights Act because the voter — and not the witness — is ultimately vouching for the legality of their ballot.

Monday’s opinion means an effective dismissal of a 2024 lawsuit brought by the Minnesota Alliance for Retired Americans Educational Fund against Minnesota Secretary of State Steve Simon challenging the witness requirement. It’s unclear whether the alliance will ask the Minnesota Supreme Court to hear the case.

When a person votes absentee — as 27% of the Minnesota electorate did in 2022 — they mark their ballot, place the ballot inside a sealed envelope, then put that envelope inside the “signature envelope,” which includes a certificate of eligibility with two required signatures.

One is from the voter, swearing they meet all legal requirements to vote by an absentee ballot. The other signature is for the witness who verifies the ballot was unmarked when given to the voter, the voter marked the ballot in the presence of the witness or, if they were physically unable, “directed another individual” to mark the ballot, and that, if the voter was not previously registered, they gave the witness proof of residency.

The alliance, which sports 84,000 members and fights for civil rights for retirees, argued that because the absentee voter needed to be “vouched” for by a member of a specific class — a registered voter, notary or authorized administer of oaths — it violated the Voting Rights Act of 1965, which had specifically sought to end vouching because it had historically given registered white voters the leeway to not vouch for the eligibility of qualified Black voters.

On top of that, because an absentee ballot could be rejected due to any issues stemming from the witness requirement, the alliance said it violated the Civil Rights Act of 1964.

Simon’s request to have the suit dismissed at the district court level had been rejected by Ramsey County Judge Edward Sheu in 2024, who believed the alliance had good standing to bring their lawsuit. But Sheu also denied a request for a temporary injunction by the alliance to eliminate the witness requirement for the 2024 general election.

The Court of Appeals opinion, written by Judge Louise Bjorkman and signed by Judge JaPaul Harris and retired Judge Lucinda Jesson, also determined the alliance had standing to bring the lawsuit but determined Minnesota’s witness requirement did not violate the Voting Rights Act or the Civil Rights Act.

In a statement, Secretary Simon said, “We appreciate the court’s ruling today which upholds the important balance of election security and accessibility. In Minnesota, we pride ourselves on our sky-high voter turnout and we trust our election results because of the common-sense security measures that include requiring a witness for those who choose to vote from home.”

Messages left with Sybil Dunlop, the attorney representing the alliance, were not returned.

Bjorkman writes that Minnesota’s legal language shows that the absentee voter is the one vouching for their eligibility to vote and that the witness signature is to prove the vote was observed, which “does not amount to a voucher to prove the voter’s eligibility.”

When it comes to an absentee voter who is also registering to vote at the same time, the requirements are slightly different for the witness. They must confirm that the absentee voter filled out the voter registration application and they saw them place it in the envelope and that the voter provided proof of residency.

That proof can include a driver’s license or Minnesota identification card or approved documents like a mortgage or rent statement or an internet or utilities bill provided within 30 days of the election.

The Secretary of State argued the verification of those documents by a witness is about “registration mechanics and voter conduct” while the alliance said that making a voter provide proof of residence to the witness is the same as vouching.

“The secretary has the better argument for two reasons,” Bjorkman wrote, concluding that the witness is not stating that the information provided by the voter is true or that they “know where the voter currently resides.”

On top of that, the witness’s role “is in addition to the absentee voter’s certification of their own eligibility” which the voter signs and swears to.

“In short, under Minnesota law, an unregistered absentee voter proves their own eligibility to vote,” Bjorkman writes.

The Court of Appeals next looked at whether the witness requirement violated a Civil Rights Act provision which states that no person shall be denied the right to vote over an error or omission if it is “not material in determining” whether an individual is qualified to vote. That includes errors or omissions on “any record or paper relating to any application, registration, or other act requisite to voting.”

The Secretary of State had shown that in Minnesota’s 2022 general election, 2.5 million Minnesotans voted, 687,062 voted absentee, and 5,479 absentee ballots were rejected due to failure to comply with witness requirements.

While the alliance had argued that any paperwork at any stage of voting, including the witness requirement, was part of an “other act requisite to voting,” the Secretary of State argued that phrase was specifically about documents related to a voter’s qualifications to vote and did not encompass the witness requirement.

Bjorkman viewed the alliance’s interpretation as “untenable” because if “other act” included all paperwork related to voting it would essentially make that clause the same as legal protections given to the act of voting. “Indeed, the alliance seems to recognize as much by stating that an act requisite to voting, ‘does not include the paper vote itself,’” Bjorkman writes.

The opinion then points to similar cases heard across the United States and a “handful of other courts” that side with this interpretation. But it notes that two federal courts, in Texas and Georgia, have interpreted the phrase differently.

While the Court of Appeals determined that the alliance had good standing to challenge Minnesota’s witness requirement, ultimately the requirement “does not violate the Voting Rights Act or the Civil Rights Act.”

The case was sent back to district court to be dismissed.