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This opinion is nonprecedential except as provided by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
A22-0111

Minnesota Voters Alliance, et al.,
Petitioners,

vs.

Office of the Minnesota Secretary of State,
Respondent.

Filed August 15, 2022
Rule declared valid
Reilly, Judge

Minnesota Secretary of State

Douglas P. Seaton, James V. F. Dickey, Upper Midwest Law Center, Golden Valley,
Minnesota; and

Gregory J. Joseph, Joseph Law Office PLLC, Waconia, Minnesota (for petitioners)

Keith Ellison, Attorney General, Nathan J. Hartshorn, Allen Cook Barr, Assistant
Attorneys General, St. Paul, Minnesota (for respondent)

Considered and decided by Frisch, Presiding Judge; Worke, Judge; and Reilly,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
In this declaratory -judgment action under Minn. Stat. § 14.44 (2020), petitioners
challenge the validity of Minnesota Rule 8210.2450, subparts 2 and 3 (2021) (the
challenged rule), arguing that it conflicts with Minnesota Statutes section 203B.121 (2020
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& Supp. 2021), such that petitioners cannot comply with both. The challenged rule
provides guidelines for examination of absentee ballot envelopes by ballot board members.
Petitioners contend that the challenged rule prohibits ballot boar d members from
considering relevant evidence as required by the statute and prevents them from fulfilling
their statutory duties. Because no conflict exists between the challenged rule and Minn.
Stat. § 203B.121, we conclude that the challenged rule is not invalid.
FACTS
Petitioner Minnesota Voters Alliance is a nonpartisan organization that “advocates
for election integrity and provides research and voter education.” Petitioners Tony Ward,
Thomas Polachek, and Edward Bailen are Ramsey County residents who served as election
judges and were members of the ballot board for Ramsey County in the 2020 and 2021
elections. Ward, Polachek, and Bailen intend to apply and serve in the same capacity in
the 2022 elections.
“To promote accurate and secure elections, Minnesota law sets uniform
requirements for processing and counting absentee ballots.” Minn. Voters All. v. County
of Ramsey, 971 N.W.2d 269, 272 (Minn. 2022). In 2010, the legislature enacted Minn.
Stat. § 203B.121 (the ba llot board statute or statute). 2010 Minn. Laws ch. 194, § 9, at 4-
7. Under the statute, “[t]he 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.” Minn. Stat. § 203B.121, subd. 1(a). The duties of the
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ballot board include accepting or rejecting absentee ballot signature envelopes, 1 opening
accepted envelopes, and storing and counting absentee ballots. Id., subds. 2- 5. The only
duty at issue here is the acceptance or rejection of signature envelopes.
Generally, any eligible Minnesota voter may request an absentee ballot by
submitting a written application to the county auditor or municipal clerk where that voter
resides. Minn. Stat. § 203B.04, subd. 1 (Supp. 2021) . The application must provide
specific identifying information and contain an oath by the voter swearing that the
information on the form is accurate, the voter is applying on their own behalf, and the form
is signed under penalty of perjury. Id., subd. 1(b) -(c). If the application satisfies the
requirements of Minn. Stat. § 203B.04, the county auditor or municipal clerk sends the
voter an absentee ballot, a signature envelope, a security envelope, and directions for
completing the absentee ballot. Minn. Stat. § 203B.07, subd. 1 (2020).
The signature envelope contains a certificate of eligibility to vote, which has space
“for the voter’s Minnesota driver’s license number, state identification number, or the last
four digits of the voter’s Social Security number, or to indicate that the voter does not have
one of thes e numbers.” Id., subd. 3 (2020). The certificate requires a sworn statement
signed by the voter confirming that the voter meets all legal requirements for voting by
absentee ballot and space for a statement to be signed by a qualified witness (a registered
Minnesota voter, notary public, or other person authorized to administer oaths) that the
proper protocol was followed in marking the ballot. Id. The components of the certificate

1 The absentee voting statutes and rules sometimes refer to a signature envelope as a return
envelope. For clarity purposes, we refer to it only as a signature envelope in this opinion.
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of eligibility track the identifying information collected on the application. Compare Minn.
Stat. § 203B.04, subd. 1(b)-(c), with Minn. Stat. § 203B.07, subd. 3.
After the voter completes the absentee ballot as directed, the voter returns the ballot
to the county aud itor or municipal clerk. Minn. Stat. § 203B.08, subd. 1 (Supp. 2021).
Within days of receipt, the county auditor or municipal clerk delivers all ballots to the ballot
board. Minn. Stat. §§ 203B.08, subd. 3, .121, subd. 2(a) (Supp. 2021). Upon delivery, two
or more members of the ballot board examine each signature envelope and mark it accepted
or rejected. Minn. Stat. § 203B.121, subd. 2. The statute requires the ballot board to accept
an absentee ballot if a majority of ballot board members examining the signature envelope
are satisfied that it meets statutory criteria. Id.
Soon after the legislature enacted the ballot board statute, the Secretary of State
promulgated Minn. R. 8210.2450 (2021) to provide guidance for the ballot board’s
examination of signature envelopes under Minn. Stat. § 203B.121. See 34 Minn. Reg.
1553, 1571-72 (May 10, 2010) (adopting rule); 38 Minn. Reg. 1363, 1368 (Apr . 21, 2014)
(amending rule); 40 Minn. Reg. 1549, 1553 (May 23, 2016) (amending rule). Petitioners
argue that the challenged rule (subparts 2 and 3 of rule 8210.2450) conflicts with the ballot
board statute (Minn. Stat. § 203B.121).
DECISION
I. Scope of pre-enforcement review
In a declaratory -judgment action, this court has original jurisdiction to determine
the validity of an agency’s rules. Coal. of Greater Minn. Cities v. Minn. Pollution Control
Agency, 765 N.W.2d 159, 163 (Minn. App. 2009), rev. denied (Minn. Aug. 11, 2009). An
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interested party 2 may bring a section 14.44 pre -enforcement declaratory -judgment action
to challenge the validity of an agency rule “when it appears that the rule, or its threatened
application, interferes with or impairs, or threa tens to interfere with or impair the legal
rights or privileges of the petitioner.” Minn. Stat. § 14.44. We may declare a rule invalid
if it (1) violates the constitution; (2) exceeds statutory authority; or (3) is adopted without
compliance with rulemaking procedures. Minn. Stat. § 14.45 (2020).
Here, petitioners argue that the challenged rule exceeds statutory authority.
Whether an agency exceeds its statutory authority is a question of law that we review de
novo. In re Application of Minn. Power for Auth. To Increase Rates for Elec. Serv., 838
N.W.2d 747, 753 (Minn. 2013). Agencies can adopt rules to “implement or make specific
the language of a statute, [but] they cannot adopt a conflicting rule.” GH Holdings, LLC
v. Minn. Dep’t of Com., 840 N.W.2d 838, 842 (Minn. App. 2013) (quotation omitted). To
the extent that a rule conflicts with the statute, the statute prevails. Hirsch v. Bartley -
Lindsay Co., 537 N.W.2d 480, 486 (Minn. 1995).
II. The challenged rule does not conflict with the ballot board statute.

A. Minn. Stat. § 203B.121
We first address the parties’ disagreement about the meaning of the ballot board
statute. Although both parties assert that the statute is unambiguous, they disagree about

2 Generally, before addressing the merits of a declaratory -judgment action, this court must
determine whether the petitioner has standing to challenge an agency’s rule. Rocco
Altobelli, Inc. v. State, Dep’t of Com., 524 N.W.2d 30, 34 (Minn. App. 1994). Shortly after
petitioners commenced this action, respondent moved to dismiss the action for lack of
standing. This court denied the motion, determining that petitioners have standing to sue
because they have an interest in the challenged rule and the harm is not speculative.
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its meaning. “The threshold issue in any statutory interpretation analysis is whether the
statute’s language is ambiguous.” State v. Peck , 773 N.W.2d 768, 772 (Minn. 2009). A
statute is ambiguous only when it is reasonably susceptible to more than one interpretation.
Id.
The ballot board statute requires a ballot board to accept a signature envelope if a
majority of members examining it are “satisfied,” in relevant part, that:
(1) the voter’s name and address on the signature envelope are
the same as the information provided on the absentee ballot
application;
(2) the voter signed the certification on the envelope; [and]
(3) the voter’s Minnesota driver’s license, state identification
number, or the last four digits of the voter’s Social Security
number are the same as a number on the voter’s absentee ballot
application or voter record. If the number does not match, the
election judges must compare the signature provided by the
applicant to determine whether the ballots were returned by the
same person to whom they were transmitted[.]

Minn. Stat. § 203B.121, subd. 2(b)(1)-(3).3
Petitioners contend that to be satisfied that “the voter signed the certification on the
envelope,” they must rely on all evidence before them, including signature comparison,
and “their training, experience, wisdom, and best judgment.” R espondent counters that,
read as a whole, section 203B.121, subd ivision 2(b), permits signature comparison only if
the voter’s identification number (e.g., Minnesota driver’s license number) on the signature

3 The statute also requires the members of the ballot board to be satisfied that: (4) the voter
is registered and eligible to vote in the precinct; (5) the certificate is complete as prescribed
in the directions for casting an absentee ballot; and (6) the voter has not already voted in
that election. Minn. Stat. § 203B.121, subd. 2(b)(4)-(6). These requirements are not at
issue here.
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envelope does not match the voter’s ballot application or voter record. We agree with
respondent.
Although the statute requires the ballot board to be satisfied that the voter’s name
on the signature envelope is “the same as the information provided on the absentee ballot
application,” id., subd. 2(b)(1), and that “the voter signed the certification on the [signature]
envelope,” id., subd. 2(b)(2), it requires signature comparison only when an identification
number on the signature envelope does not match the application or the voter’s record, id.,
subd. 2(b)(3). The statute does not require identical signatures, or requi re further inquiry
if a signature discrepancy occurs , as it does with mismatched identification numbers.
Reading the three provisions together, as we must, we conclude that the statute
contemplates signature comparison only when identification numbers do not match. See
Minn. Stat. § 645.16 (2020) (“Every law shall be construed, if possible, to give effect to all
its provisions.”).4
“If the language of a statute is clear and free from ambiguity, the court’s role is to
apply the language of the statute and not explore the spirit or purpose of the law.” Toyota-
Lift of Minn., Inc. v. Am. Warehouse Sys., LLC , 886 N.W.2d 208, 211 (Minn. 2016). And
“[w]e will not read in requirements to a statute where none exist.” Minn. Voters All., 971

4 Petitioners assert that the use of a de finite article —the voter— in section 203B.121,
subdivision 2(b)(2), reflects a legislative intent for signature comparisons. We do not doubt
that the legislature intended for a particular voter (or another authorized person) to sign the
envelope containing that voter’s ballot. But the question before us is what actions ballot
board members can take in satisfying themselves that the signature requirement is met.
Petitioners’ semantical argument does not persuade us that the statute authorizes or requires
signature matching when there is not an identification- number discrepancy.
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N.W.2d at 277. We therefore apply the plain meaning of the statute: a determination that
the voter signed the certification does not contemplate signature comparison. W e next
consider whether the challenged rule conflicts with the statute.
B. Minn. R. 8210.2450, subp. 2
Minnesota Rule 8210.2450, subpart 2, provides guidelines for examination of
signature envelopes, specifically, “name, address, and signature review”:
The voter’s name and address on the absentee ballot
application must match the voter’s name and address on the
signature envelope. . . . Ballot board members must determine
whether the signature envelope was signed by the voter. Use
of, or lack of, full names, nicknames, abbreviations, or initials
within either signature are not a reason for rejection. A
signature is considered the voter’s even if a voter uses a
signature mark on either or both documents, or if a voter has
another individual or different individuals sign the voter’s
name in their presence on either or both the application and the
signature envelope in accordance with Minnesota Statutes,
section 645.44, subdivision 14. A ballot must be rejected
under this subpart on the basis of the signature if the name
signed is clearly a different name than the name of the voter as
printed on the signature envelope. This is the only
circumstance under which a ballot may be rejected on the basis
of signature under this subpart.

Minn. R. 8210.2450, subp. 2.
Petitioners argue that subpart 2 conflicts with Minn. Stat. § 203B.121, subd. 2(b)(2),
because it “expressly eliminates the ballot board members’ analysis of several categories
of evidence which could be used for them to be ‘satisfied’ that ‘the voter signed’ the
envelope.” Petitioners challenge the rule’s guidance that, “Use of, or lack of, full names,
nicknames, abbreviations, [a signature mark], or initials on either document are not a
reason for rejection.” Minn. R. 8210.2450, subp. 2.
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Although petitioners are correct that the ballot board statute requires members to be
satisfied that the voter signed the envelope, the statute does not, to this end, require (or
allow ballot board members to require) exact consistency between the signature envelope
and application. As explained above, we understand the ballot board statute to contemplate
signature comparison only when there is an identification-number discrepancy. The statute
does not require signature comparison when the voter uses a nickname, abbreviation,
signature mark, or initials on one of the documents.
Subpart 2 makes clear, in conformity with Minn. Stat. § 203B.121, subd. 2(b)(1),
that “[t]he voter’s name and address on the absentee ballot application must match the
voter’s name and address on the signature envelope.” Minn. R. 8210.2450, subp. 2. It
does not authorize, or require, ballot board members to accept a ballot when the name on
the signature envelope does not match the name on the application. Id. Rather, it provides
some flexibility in how a voter writes their name on different documents over a span of
time. T he rule also clarifies that the only time a ballot must be rejected because of a
signature is when “the name signed is clearly a different name than the name of the voter
as printed on the signature envelope.” Id. (emphasis added). Thus, the challenged rule,
which allows for some variation in name usage and signatures, does not directly conflict
with the statutory requirement that ballot board members be satisfied that “the voter signed
the certification on the [signature] envelope.” See Minn. Stat. § 203B.121, subd. 2(b)(1) -
(3).
Petitioners also argue the challenged rule prevents ballot board members from
fulfilling their statutory obligations because it “requires acceptance of ballots with another
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person’s signature on ‘either or both’ documents,” essentially allowing anyone to sign for
the voter for any reason. This argument is not persuasive. The challenged rule lists only
one circumstance in which an other person may sign for the voter , which must occur upon
the voter’s request and in the voter’s presence: when the other person signs in accordance
with Minn. Stat. § 645.44, subd. 14 (2020). M inn. R. 8210.2450, subp. 2. Under section
645.44, subdivision 14, if a person “is unable to write,” another individual may sign on the
person’s behalf in the person’s presence.
Allowing another person to sign the signature envelope on the voter’s behalf
complies with chapter 203B, which allows a voter to dire ct another person to mark the
absentee ballot itself. When “the voter was physically unable to mark” the ballot, Minn.
Stat. § 203B.07, subd. 3, requires the voter’s witness to certify that “the voter directed
another individual to mark” the ballot. Thus, the challenged rule’s allowance of signature
by proxy adheres to sections 645.44, subdivision 14, and 203B.07, subdivision 3. We
therefore reject the argument that the rule’s provision that “another individual . . . [may]
sign the voter’s name in their presence on either or both the application and the signature
envelope in accordance with Minnesota Statutes, section 645.44, subdivision 14,” prevents
a ballot board member from determining that the voter signed the certification.
In summary, the examples of acceptable variations in names and signatures within
Minn. R. 8210.2450, subp. 2, do not conflict with the statute, which does not require exact
conformity between a signature envelope and application.
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C. Minn. R. 8210.2450, sub p. 3
Minnesota Rule 8210.2450, subpart 3, provides more guidance for examination of
signature envelopes, specifically, “identification number review”:
Ballot board members must determine whether the
identification number provided by the voter on the certificate
is the same as the identification number provided by the voter
on the absentee ballot application or the voter’s record in the
statewide voter registration system.

If the numbers do not match or the voter did not provide
identification numbers on both documents, the ballot board
members must compare the signatures on the absentee ballot
application and on the signature envelope to determine whether
the ballots were returned by the same person to whom they
were transmitted. Use of, or lack of, full names, nicknames,
abbreviations, or initials within either signatur e are not a
reason for rejection. A signature is considered the voter’s even
if a voter uses a signature mark on either or both documents, or
if a voter has another individual or different individuals sign
the voter’s name in their presence on either or both the
application and the [signature] envelope in accordance with
Minnesota Statutes, section 645.44, subdivision 14.

Minn. R. 8210.2450, subp. 3 (emphasis added).
Petitioners argue that the second paragraph of subpart 3, which allows for “ballot
board members” to compare signatures, violates the statute because the statute makes clear
that only election judges can compare signatures. See Minn. Stat. § 203B.121, subd.
2(b)(3) (“If the number does not match, the election judges must compare the signature
provided by the applicant . . . .”).
Petitioners are correct that only election judges can compare signatures. See id.;
Minn. Voters All. , 971 N.W.2d at 280 (determining task of signature comparison “is
committed to election judges alone”). Even so, the broad language of the challenged rule
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does not conflict with the specific language of the ballot board statute because ballot boards
must include “a sufficient number of election judges.” Minn. Stat. § 203B.121, subd. 1(a).
Thus, a ballot board can comply with both the statute and the rule by having ballot board
members who are election judges perform signature comparison. While the language of
subpart 3 could track section 203B.121, subd ivision 2(b)(3), more closely, the rule does
not preclude compliance with the statute.
Petitioners also suggest that limitations in subpart 3 on review of voter signatures
prohibit election judges from making an informed decision based on their training and
expertise that the signature en velope meets statutory requirements. See Minn. Stat.
§ 203B.121, subd. 2( b). For the reasons discussed above related to limitations in subpart
2, we are not persuaded.
In conclusion, the unambiguous language of the ballot board statute provides that a
majority of examining ballot board members must be satisfied that six statutory criteria are
met before accepting an absentee ballot. Minn. Stat. § 203B.121, subd. 2( b). The
challenged rule provides guidance regarding the examination of signature envelopes,
including how to evaluate variations in names and signatures. The challenged rule and
statute do not conflict because ballot board members can comply with both.
Rule declared valid.