Minnesota Voters Alliance, et al., Petitioners,

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0601

Minnesota Voters Alliance, et al.,
Petitioners,

vs.

State of Minnesota,
Respondent,

Minnesota Secretary of State Steve Simon,
Respondent.

Filed February 1, 2021
Petition dismissed
Reyes, Judge

Minnesota Secretary of State

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., 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.
SYLLABUS
To have standing in a declaratory-judgment action under Minn. Stat. § 14.44 (2018)
to challenge the validity of a rule, 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) an alleged harm
that is not speculative or hypothetical; and (3) an alleged harm that is uniquely attributable
to the rule.

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OPINION
REYES, Judge
In this declaratory -judgment action under Minn. Stat. § 14.44 (2018), petitioners
seek to invalidate Minn. R. 8210.2450, subp. 1 (2019) (the rule) arguing that it contradicts
Minn. Stat. § 203B.121, subd. 2(a) (2018). Petitioners contend that the rule exceeds
statutory authority because “deputy county auditors” and “deputy city clerks” (collectively,
“deputies”) who serve on ballot boards are “election judges” who must disclose their party
affiliation and maintain partisan balance with respect to other major political parties under
the statute. Petitioners also seek fees and expenses under the Minnesota Equal Acc ess to
Justice Act (MEAJA), Min n. 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. W e therefore dismiss the petition
for declaratory judgment.
FACTS
Petitioner Minnesota Voters Alliance ( MVA) is an organization compris ing
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.

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Petitioners Susan Jeffers, Lora Lee Shreir, Charles Halverson, and Colin L.
Wilkinson (prospective election judge petitioners) are members of MVA who sought to
serve as election judges in Ramsey County, Olmsted County, the City of Minneapolis, and
Anoka County , respectively. All are members of the same major political party in
Minnesota. Only Jeffers and Schreir have served as election judges previously.
In 2010, the legislature enacted Minn. Stat. § 203B.121 (the ballot-board statute) to
provide for review of absentee ballots in Minnesota elections. 2010 Minn. Laws ch. 194
§ 9, at 125. Subdivision 1(a) of the ballot-board statute provides the appointment process
and explains who may serve on the ballot board:
The governing body of each county, municipality, and
school district with responsibility to accept and reject absentee
ballots must, by ordinance or resolution, establish a ballot board.
The board must consist of a sufficient number of election judges
trained in the handling of absentee ballots and appointed as
provided in sections 204B.19 to 204B.22. The board may
include deputy county auditors or deputy city clerks who have
received training in the processing and counting of absentee
ballots.
Minn. Stat. § 203B.121, subd. 1(a) (2018) (emphasis added) . After the ballot board is
established, subdivision 2(a) governs the duties of the different ballot-board members:
The members of the ballot board shall take possession
of all return envelopes delivered to them in accordance with
section 203B.08. Upon receipt from the county auditor ,
municipal clerk, or school district clerk, two or more members
of the ballot board shall examine each return envelope and
shall mark it accepted or rejected in the manner provided in this
subdivision. Election judges performing the duties in this
section must be of different major political parties, unless they
are exempt from that requirement under section 205.075,
subdivision 4, or section 205A.10, subdivision 2.
Minn. Stat. § 203B.121, subd. 2(a) (2018) (emphasis added).

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The rule as it relates to the ballot-board statute states:
Two or more ballot board members from different
major political parties must review the absentee ballots
returned for the precinct under Minnesota Statutes, section
203B.121, unless they are deputy county auditors or deputy
city clerks who have received tr aining in the processing and
counting of absentee ballots , or are exempt from that
requirement under Minnesota Statutes, section 205.075,
subdivision 4, or Minnesota Statutes, section 205A.10,
subdivision 2.
(Emphasis added.)
ISSUES
I. Do petitioners have standing to assert this declaratory-judgment action under
Minn. Stat. § 14.44?
II. Are petitioners entitled to fees under MEAJA?
ANALYSIS
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, 16 4 (Minn.
App. 2009), review denied (Minn. Aug. 11, 2009). Petitioners only challenge the rule as
exceeding statutory authority.

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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
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 issue,
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).

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In sum, we hold that, 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.
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 La cs, 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)); 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) (an 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 intere st 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 legitimacy of the election results.” They
suggest ineligible absentee voters would harm their major political party more than other

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parties.1 Their position requires a chain of hypothetical claims not supported by the record.
Namely, their position requires this court to speculate that: (1) there are ineligible voters
casting absentee ballots; (2) those absentee ballots are examined by deputies, not election
judges; (3) deputies are more likely than election judges to count ineligible votes; and
(4) deputies count those absentee ballots from ineligible voters . Even assuming the rule
results in ballot boards counting more ineligible absentee votes, petitioners would require
us to make yet another assumption to show that the injury is attributable to the rule : that
deputies will count more ineligible absentee votes for one candidate or party than others.
Their chain of hypothetical claims is even more speculative than the theory of injury in
Save Mille Lacs, involving additional links in the chain that are based in neither fact nor
law. 859 N.W.2d at 8 53-54. This degree of conjecture cannot confer standing because
their theory of harm is speculative , hypothetical, and not attributable to the rule that
petitioners seek to challenge . Accordingly, we conclude that candidate petitioners lack
standing under the second and third considerations.
Prospective election judge petitioners allege a desire to personally serve as election
judges and that deputies are being appointed in lieu of them . First, whether prospective
election judge petitioners allege an interest that is direct and different in character than that
of the citizenry in general is tenuous. Similarly, the prospective election judge petitioners’
alleged harm, that “non-partisan persons” who were “not appointed by the governing body”

1 At oral argument, petitioners clarified that, because they are all members of the
Republican party, their concern is that only deputies who are members of the Democratic-
Farmer-Labor (DFL) party would review absentee ballots in jurisdictions that are
predominantly DFL-leaning.

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have accepted or rejected absentee ballots, is speculative, not supported by the record, and
at times inconsistent:2 More importantly, on the third consideration, prospective election
judge petitioners do not clearly articulate how the rule creates a harm uniquely attributable
to it or that will be applied to their disadvantage. Prospective election judge petitioners’
allegations concern the appointment process of ballot -board members, not the rule. The
rule they seek to challenge does not govern appointments. A decision from this court
invalidating the rule would not redress their alleged injury. As a result, prospective election
judge petitioners lack standing under each of the three considerations.
We conclude that all petitioners 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, cou rts need not reach the merits of the underlying
controversy).
II. Petitioners are not entitled to fees 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

2 Petitioners’ brief states that the deputies are “non-partisan persons” but at oral argument,
their theory of harm was that the deputies are partisan.

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substantially justified” then the court shall award fees and other expenses.) . Because
petitioners have not prevailed, we deny their request.
D E C I S I O N
Under Minn. Stat . § 14.44, because petitioners’ alleged harm is speculative ,
hypothetical, and not attributable to the rule they seek to challenge, we dismiss the petition
for lack of standing. Fees and expenses are denied.
Petition dismissed.