Minnesota Voters Alliance, et al., Petitioners,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0469

Minnesota Voters Alliance, et al.,
Petitioners,

v.

State of Minnesota,
Respondent,
Minnesota Secretary of State Steve Simon,
Respondent.

Filed February 8, 2021
Petition dismissed
Reyes, Judge

Erick G. Kaardal, Gregory M. Erickson, Mohrman, Kaardal & Erickson, PA, Minneapolis,
Minnesota (for petitioners)

Keith Ellison, Attorney General, Nathan J. Hartshorn, Assistant Attorney General, St. Paul,
Minnesota (for respondents)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION

REYES, Judge
In this declaratory -judgment action under Minn. Stat. § 14.44 (2018), petitioners
argue that the process for an absentee voter to certify the voter’s eligibility under Minn. R.
8210.0225 (2019) (the rule) contradicts and exceeds the statutory authority of Minn. Stat.
§§ 204C.12 (2018) and 201.121, subd. 2 (2018). Petitioners also seek fees and expenses

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under the Minnesota Equal Access to Justice Act (MEAJA), Minn. Stat. §§ 15.471-.474
(2018). We conclude that, because petitioners’ alleged injury is speculative, hypothetical,
and not attributable to the rule, they lack standing under section 14.44 to challenge the rule.
We therefore dismiss the pe tition for declaratory judgment and deny the request for fees
and expenses.
FACTS
Petitioner Minnesota Voters A lliance (MVA) is an organization comprising
members who seek to ensure “public confidence in the integrity of Minnesota’s elections,”
election results, systems, and procedures, and to enforce election laws. MVA seeks to
protect the rights of its members when a law, statute, rule, or regulation interferes with their
rights and privileges related to voting.
Petitioners Mary Franson, Duane Quam, and Eric Lucero (candidate petitioners) are
members of MVA who currently represent House Districts 8B, 25A, and 30B respectively,
in the Minnesota House of Representatives and sought reelection in the 2020 election cycle.
Petitioner Cindy Pugh is also a member of MVA who represented Minnesota House
District 33B from 2012 to 20 18. Pugh lost her race for reelection in 2018. Petitioners
conceded at oral argument that Pugh did not run for public office in the 2020 election cycle,
but they assert she would like to run in the future.
Chapter 203B, which governs absentee voting, states, “Minnesota Election Law is
applicable to voting by absentee ballot unless otherwise provided in this chapter.” Minn.
Stat. § 203B.001 (2018). In Minnesota, absentee voters must certify that they will “meet[]
all of the requirements established by law for voting by absentee ballot ” by election day

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subject to a felony for falsely certifying. Minn. Stat. §§ 203B.07, subd. 3 (2018); 203B.03,
subds. 1(a)(1), 2 (2018); see also Minn. Stat. § 201.014 (2018).
A. Eligibility requirements and grounds for ineligibility
To be eligible to vote in Minnesota, a person must “(1) be 18 years of age or older,
(2) be a citizen of the United S tates, and (3) maintain residence in Minnesota for 20 days
immediately preceding the election.” Minn. Stat. § 201.014. A person is not eligible to
vote if: “(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.” Minn. Stat. § 201.014, subd. 2.
Respondent Minnesota Secretary of State receives reports regarding voters whose
eligibility is challenged on any of the three ineligibility grounds, which the secretary sends
to county auditors to change the status of those voters to “challenged.” Minn. Stat.
§ 201.145, subd. 2(d) (2018). “Any voter registered within a county may challenge the
eligibility or residence of an y other voter registered within that county ” by submitting a
petition to the county auditor stating grounds based on personal knowledge of the voter’s
ineligibility to vote. Minn. Stat. § 201.195 (2018). Petitioners and respondents
acknowledge that a challenge, alone, is not evidence of ineligibility but an indication of the
mere possibility of ineligibility.
B. Section 204C.12
Chapter 204C is titled “ELECTION DAY ACTIVITIES,” and sections 204C.06 to
204C.18 govern “ POLLING PLACE ACTIVITIES .” Minn. Stat. § 204C.12, titled
“CHALLENGES TO VOTERS; PENALTY,” provides for an election judge to administer

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an oath to a challenged individual and “ then ask the challenged individual sufficient
questions to test that individual ’s residence and right to vote. ” Id., subd. 2. An election
judge or “other voter” who has personal knowledge that a voter may not be eligible to vote
can challenge that voter’s eligibility. Id., subd. 1. Section 204C.12 also explains the
consequences of failing to overcome this challenge before voting at the polling place:
A challeng ed 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.
Id., subd. 4 (emphasis added).
C. Section 201.121
A voter’s registration will also be challenged on residency grounds if the county
auditor receives a return notice as not deliverable to the address provided by the voter.
Minn. Stat. § 201.121, subd. 2 (2018). Section 201.121 provides:
The county auditor shall mail a notice indicating the
individual’s name, address, precinct and polling place to each
registered voter. The notice shall indicate that it must be
returned if it is not deliverable to the voter at the named
address. Upon return of the notice by the postal service, the
county auditor shall change the registrant ’s status to
“challenged” in the statewide registration system. An
individual challenged in accordance with this subdivision shall
comply with the provisions of section 204C.12, before being
allowed to vote.
Id. (emphasis added).

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D. Rule 8210.0225
Minn. R. 8210.0255 provides:
A voter registration application must be sent with the
ballot to any challenged voter and to each voter whose voter
registration application is incomplete under Minnesota
Statutes, section 201.061, subdivision 1a, or 201.121, who
applies for an absentee ballot. The absentee ballot process must
be administered as if the voter was not registered to vote.
DECISION
Under Minn. Stat. § 14.44, an interested party may challenge the validity of an
agency rule “when it appears that the rule, or its threatened application, interferes with or
impairs, or threatens to interfere with or impair the legal rights or privileges of the
petitioner.” The petitioner may seek to have a rule declared invalid if it (1) violates the
constitution; (2) exceeds statutory authority; or (3) is adopted without compliance with
rulemaking procedures. Minn. Stat. § 14.45 (2018). In this preenforcement context, this
court is restricted to considering these three bases for declaring a rule invalid. Coal. of
Greater Minn. Cities v. Minn. Pollution Control Agency , 765 N.W.2d 159, 164 (Minn.
App. 2009), review denied (Minn. Aug. 11, 2009). Petitioners only challenge the rule as
exceeding statutory authority.
I. Petitioners lack standing under Minn. Stat. § 14.44.
As an initial matter, respondents argue that petitioners lack standing. We agree.
Courts apply general principles of justiciability governing declaratory -judgment
standing to determine whether a party has standing under section 14.44 . See Rocco
Altobelli, Inc. v. State, Dep’t of Commerce, 524 N.W.2d 30, 34 (Minn. App. 1994) (citing

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State ex rel. Smith v. Haveland , 25 N.W.2d 474 , 477 (Minn. 1946) ); see also Arens v.
Village of Rogers, 61 N.W.2d 508, 512-13 (1953)). Under these principles, “[p]etitioners
must have a direct interest in the validity of that rule which is different in character from
the interest of the citizenry in general.” Rocco Altobelli, 524 N.W.2d at 34 (quotation
omitted). Additionally, the mere possibility of injury or a mere interest in a problem cannot
confer standing. Id.; see also Byrd v. Indep . Sch. Dist. No. 194 , 495 N.W.2d 226, 231
(Minn. App. 1993) (“Because IBEW’s ‘injury’ is speculative, we conclude IBEW lacks
standing to pursue its claims.”), review denied (Minn. Apr. 20, 1993). Petitioners’ alleged
harm cannot be speculative or “predicated on hypothetical facts.” Save Mille Lacs
Sportsfishing v. Minn. Dep’t of Nat. Res. , 859 N.W.2d 845, 853-54 (Minn. App. 2015)
(Hudson, J., concurring) (indicating that majority opinion noted potential standing issu e,
but declined to dismiss on that ground as parties had not raised the issue). To satisfy
redressability, the injury must also be attributable to the challenged rule , and petitioners
must show that the rule is applied to or is about to be applied to their disadvantage. Rocco
Altobelli, 524 N.W.2d at 34 -35 (explaining that injury claimed by petitioners was not
attributable to the rule).
In sum, to establish standing under section 14.44 , a petitioner must demonstrate
(1) a direct interest in the rule that is different in character from t hat of the citizenry in
general; (2) the alleged harm is not speculative or hypothetical; and (3) the alleged harm is
uniquely attributable to the rule. Minn. Voters All. v. State,__N.W.2d__(Minn. App. Feb.
1, 2021).

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Here, MVA asserts an independent interest in preserving the integrity of elections .
Because MVA’s interest is no different in character than that of the citizenry in general,
MVA must derive any potential standing from its members. See Save Mille Lacs , 859
N.W.2d at 854 (noting that a corporation may sue on behalf of its individual members)
(citing Snyder’s Drug Stores, Inc. v. Minn. State Bd. of Pharmacy, 221 N.W.2d 162, 165-
66 (Minn. 1974)).; Byrd, 495 N.W.2d at 231 (noting union lacked standing because injury
to its members was speculative); Builders Ass’n of Minn. v. City of St. Paul , 819 N.W.2d
172, 177 (Minn. App. 2012) (associations must show injury-in-fact to its members to have
standing); Hanson v. Woolston, 701 N.W.2d 257, 262 (Minn. App. 2005) (injury-in-fact is
concrete and actual or imminent).
Candidate petitioners assert that their interest in the fairness of the elections is
different in nature from the citizenry in general because they may assume office if elected.
We agree that, because candidate petitioners may assume office if elected, their interest is
indeed different in character from the citizenry in general. However, their theory of harm
nevertheless fails under the second and third considerations.
Candidate petitioners allege that they have “reason to believe” their right or
privilege to take office will be threatened “if a significant number of ineligible voters cast
ballots[,] thereby undermining the credibility and legitim acy of the election results.”
(Emphasis added.) Yet, petitioners admit that there is no evidence of voter fraud associated
with absentee voters whose status es have been challenged .1 They ask this court to

1 At oral argument, petitioners admitted there is no evidence of voter fraud related to
absentee voters whose statuses have been challenged.

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speculate that: (1) there are ineligible voters casting absentee ballots; (2) some of those
ineligible voters’ statuses are challenged; (3) ballot-board members are counting those
ineligible absentee voters’ ballots before determining that the voters have overcome the
challenge; (4) the certifications under the rule allow for more ineligible challenged voters
to cast ballots than in -person oaths under section 204C.12; and (5) those votes harm one
candidate or party more than others. This chain of hypothetical facts amounts to no more
than “a mere possib ility of injury ” which cannot confer standing under section 14.44 .
Rocco Altobelli, 524 N.W.2d at 34. For similar reasons, candidate petitioners’ theory of
harm is too attenuated to be uniquely attributable to the rule under our third consideration.
We also note that invalidating the rule would effectively result in no vetting process for
challenged absentee voters. This result would be contrary to the very purpose of
petitioners’ action: “to ensure . . . public confidence in the integrity of Minnesota’s
elections.” Accordingly, we conclude that candidate petitioners lack standing under the
second and third considerations because their theory of harm is speculative, hypothetical,
and not attributable to the rule.
With respect to Pugh, her basis for standing is even more tenuous than that of
candidate petitioners. First, Pugh does not articulate how her interest is any different than
that of the citizenry in general, who share an interest in preserving the integrity of elections.
The mere possibility of her running for office is not different in character from the
possibility that any other citizen might run for office. Second, Pugh’s basis for standing is
more speculative than that of candidate petitioners because she could not be disadvantaged
by the rule if she does not run for office in the future . This is certainly no more than a

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“mere possibility of injury.” Finally, like candidate petitioners, Pugh’s alleged injury
cannot be attributed to the rule.
We conclude that all pe titioners lack standing to challenge the rule under section
14.44 because their theories of injury are speculative, hypothetical, and not attributable to
the rule. Accordingly, we need not consider the merits of petitioners’ challenge.
McCaughtry v. City of Red Wing , 808 N.W.2d 331, 341 (Minn. 2011) (noting when the
issue raised is one of justiciability, courts need not reach the merits of the underlying
controversy).
II. Petitioners are not entitled to f ees or expenses under the Minnesota Equal
Access to Justice Act (MEAJA), Minn. Stat. §§ 15.471-.474 (2018).

Under MEAJA, a petitioner who prevails against the state in certain cases may seek
fees and expenses. Minn. Stat. § 15.472(a) (“If a prevailing party other than the state, in a
civil action . . . against the state, shows that the position of the state was not substantially
justified” then the court shall award fees and other expenses.) . Because petitioners have
not prevailed, we deny their request.
Petition dismissed.