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Ruling: District Court didn’t abuse discretion in denying writ of mandamus
A unanimous Minnesota Court of Appeals panel Monday shot down a conservative coalition’s bid to challenge the composition of absentee ballot boards in 2020.
Full ruling here.
The Minnesota Voters Alliance, Republican Party of Minnesota and several affiliated individuals—including several GOP political candidates and lawmakers—filed the appeal. Monday’s precedential decision affirms a Ramsey County District Court judge’s holding against the group.
On Sept. 24, 2020, District Court Judge Thomas A. Gilligan ruled that petitioners failed to demonstrate how city and county authorities violated a “duty clearly established by law,” when they appointed their own employees to absentee ballot boards—a role described in court documents as “deputy” county auditors and city clerks.
Therefore, Gilligan ruled, petitioners failed to show cause for issuing a writ of mandamus.
A writ of mandamus is an extraordinary remedy. It compels a government authority to perform some duty that it has otherwise neglected. Courts usually are loath to take that step, because it implicates the separation of powers.
In Monday’s ruling, written by Judge Tracy M. Smith, the Court of Appeals found Gilligan did not abuse his discretion by denying plaintiffs’ that requested relief.
“Appellants failed to establish that respondents violated any clearly imposed duty when appointing members to their ballot boards, pursuant to Minn. Stat. § 203B.121, subd. 1(a),” Smith writes for the court. Judges Kevin G. Ross and Francis J. Connolly joined with Smith in the consolidated appeal.
Attorney Erick Kaardal, counsel to appellants, said Monday that he will request review of the case by the state Supreme Court.
Case facts
During the summer of 2020, the respondents—Ramsey and Olmsted counties and the city of Duluth—appointed absentee ballot boards for the then-forthcoming November general elections. Those boards evaluate and either accept or reject absentee ballots. All three jurisdictions appointed a mix of election judges selected from the general public and government staff to their boards.
All three local governments justified using employees under a provision in Minn. Stat. § 203B.121, subd. 1(a), which authorizes governing bodies to appoint “deputy county auditors” and “deputy city clerks” to absentee ballot boards.
Before turning to their own staff to serve on the boards, however, Duluth and Ramsey County said they exhausted lists of prospective election judges submitted by major political parties. Olmsted County was the only authority to obtain statements of political party affiliation from staff members, but none felt that step was actually required.
In petitioning Gilligan for writs of mandamus, appellants brought three essential arguments.
- That respondents improperly delegated their authority.
- That they improperly appointed municipal or county employees to the absentee ballot boards.
- That they failed to appoint partisan election judges to the boards to ensure both party balance and proper acceptance or rejection of absentee ballots. (To the contrary, Duluth officials maintained, the neutrality of non-partisan staff was “necessary to ensuring public trust in their work and in fair results.”)
Gilligan, in his Sept. 24, 2020 order, denied the plaintiffs’ petitions, ruling that they failed to establish the required elements for issuing the requested writ.
Contrary to their claims, the judge found, election laws do not require that absentee ballot boards be established as independent entities and there is nothing in statute to suggest that they do.
Nor is there an official duty imposed by law requiring absentee ballots to be reviewed exclusively by election judges from the major political parties, Gilligan found.
Similarly, nothing in statute supports claimants’ contention that governments must establish absentee ballot boards “by resolution or ordinance.” Nor do authorities have to exhaust major political party lists before appointing staff as board deputies. And local governments are not precluded from appointing their own employees to those boards, Gilligan ruled.
Likewise, he found, there is no “clearly imposed” duty that requires employees, acting as deputies on the boards, to disclose party affiliation.
Respondents further failed to qualify for the writ because they couldn’t demonstrate any public wrong “specifically injurious to them,” Gilligan ruled. Nor could they demonstrate, as they had maintained, that there is no other adequate remedy in law available.
In fact, Gilligan pointed to four alternative paths:
- A declaratory judgment action under Minn. Stat. § 14.44. (Several petitioners in the case actually pursued that course, filing for declaratory judgment against Secretary of State Steve Simon, months before commencing the action described here.)
- A claim under the Administrative Procedures Act.
- An “errors and omissions” petition under Minn. Stat. § 204B.44.
- Contesting the election under Minn. Stat. Chapter 209.
Closing out his ruling, Gilligan concluded:
“For all of these reasons, respondents’ motions to dismiss are granted. The petitions for a writ of mandamus in each case are dismissed.”
Narrowed claims
On consolidated appeal, respondents narrowed their claims. Now, they asserted that government authorities violated the law:
- By failing to exhaust major-party lists of potential election judges when appointing deputies to the absentee ballot boards
- By not appointing “bona fide” deputy county auditors and deputy city clerks to the boards. (To be “bona fide,” appellants maintained, deputies must possess the full plenary authority given to county auditors and city clerks to sign papers and perform work related to taxes, real estate and the like.)
- By failing to obtain a statement of party affiliation from deputies appointed to the boards.
They also contested the local authorities’ claim that the case was moot on appeal, because the 2020 election was over and the court had no way to grant relief.
Early on in Monday’s ruling, judges handed a victory to Kaardal and his clients on that issue. They found the appeal was not moot, because it involves issues that “are capable of repetition yet evading review.”
But that turned out to be a short-lived victory. The same finding prompted the appellate panel to decide on Gilligan’s potential abuse of discretion. In short, no, the Court of Appeals ruled: Gilligan did not abuse his discretion.
The panel was “not persuaded” that political party lists must be exhausted prior to employees being appointed. And the appellants’ argument that deputy county auditors must be “bona fide deputies” in order to serve on absentee ballot boards “is unconvincing,” the panel ruled.
Nor was appellants’ argument persuasive that government employees serving as deputies on absentee ballot boards “effectively become election judges,” and that local officials therefore violated a duty to require disclosure of their deputies’ political affiliations. “Again,” Smith writes, “we disagree.”
Statute does say that “election judges” must reveal their party affiliations. But it only says that absentee ballot boards “may include” staff deputies trained in the processing and counting of absentee ballots, without stipulating the additional requirement.
“Because only election judges are governed by Section 204B.21’s requirement to disclose party affiliation or non-affiliation,” Smith writes, “members of the ballot boards who are deputies are not clearly required to disclose that information.”
Appellants failed to establish a violation of duties imposed by law, so the Court of Appeals found the first requirement for a writ of mandamus went unmet. As a result, judges found no need to evaluate the writ’s other two requirements.
The court then affirmed Gilligan’s ruling.
Attorney Erick Kaardal (Photo: Kevin Featherly)
Kaardal responds
In an interview Monday, Kaardal said he accepts the ruling. But he plans to continue pursuing the case. “We are going to petition the Supreme Court for review because it’s a really important issue for my clients,” he said.
Kaardal, who has made a career suing government, said he hopes this case marks a step toward a change in judicial thinking about issuing extraordinary writs, including writs of quo warranto (forcing an official to prove that an asserted power is valid) and writs of mandamus.
“We think it is an extraordinary remedy,” Kaardal said, “but it should be available when the government violates the law in a way that injures a party. So that’s where the disagreement with the court is.”
Kaardal said that, if granted Supreme Court review, he would argue the Court of Appeals applied too strict a standard. “With respect to whether there needs to be a ‘clear duty,’” he said, “I think that is too high a standard. A ‘duty’ would be sufficient.”
The lawyer went on to point out that trust in government institutions is at historic lows and suggested that his clients’ absentee ballot-board case is representative of a widespread feeling that government these days isn’t “doing its best.”
Courts’ role in preventing government from becoming a serial violator of law is an essential one, Kaardal asserted, before adding:
“Everyone kind of agrees with that. And I think to the extent that the court disagrees, it’s just a matter of communicating with them about the need. And hopefully, they’ll eventually agree.”
