On September 21st, I appeared at the Minnesota Court of Appeals in support of an on-going effort to obtain transparency and accountability in the election process. My journey began in April of 2022 with a request for public data regarding the election equipment used in Rice County. The data requests of my co-plaintiff began in October 2021. To date, only 15 pages of documents have been voluntarily disclosed to me in response to my Minnesota Government Data Practices request. I use the term “voluntarily” because we have also obtained information from other private citizens; and have used the power of subpoena to obtain additional information from the Secretary of State’s office, who is now also a party in this action.
Depending on which side of the process you are on, the term “transparency” can take on extremely contrasting meanings. As private citizens, we feel that we have the right to ask tough questions and obtain public information from taxpayer-funded government bodies. This includes information that may be perceived as overly intrusive to public officials, or even quirky to the average citizen. From my perspective as a lawyer, the idea that a member of the public needs to explain or justify why they are requesting public government data is plain wrong. If it is government data, it must be promptly disclosed. There is no litmus test requiring the public to justify why they want the public data. After 18 months, three court hearings, a district court order dismissing our case, and now an appearance at the Minnesota Court of Appeals, I have learned the hard way that obtaining government data is too often much more complicated than simply requesting it.
In contrast, from the perspective of government officials, the concept of “transparency” refers to their need to expose the perceived unjust harassment resulting from public scrutiny of their job duties. Our efforts at obtaining basic public data have been labeled by public officials as a “fishing expedition” and motivated to “advance a false narrative.” One Statewide newspaper even ran an ominous headline regarding our case that read, “Rice County lawsuit could upend the November election, if successful.”
I have learned by this experience the meaning of a new term - “jawboning” - which is defined as, “when government officials publicly condemn certain legal behavior that they disfavor.” I recently read about another case where the City of Minneapolis is accused of attempting to intimidate a Minnesota Non-profit seeking government transparency. In response to a request for disclosure, the City of Minneapolis is demanding unrelated personal data from the members of their board. These jawboning/intimidation efforts, coupled with the continued refusal to fully respond to data requests, are clearly intended to grind down any efforts to scrutinize government operations.
The Minnesota Government Data Practices Act, referred to as a “Sunshine Law” authorizes private citizens to obtain broad access to the process of counting votes in Minnesota elections. Unfortunately, few citizens or organizations have the time, skills, and resources to sustain lengthy skirmishes against the deep resources of public officials.
Despite these hurdles, our efforts have disclosed at least two areas of concern regarding the operation of local elections. Did you know that Minnesota bans the use of modems in elections, except for very limited purposes? At least six Counties in Minnesota use modems to transmit early, unofficial election results to the Office of the Secretary of State, which results are then made available to the public, and certain media outlets. Our lawsuit requests that the legality of this practice be scrutinized. Further, we discovered that the modems embedded inside Rice County’s election equipment are not examined or certified by the Secretary of State. Again, our lawsuit requests court review to determine if these modems should be subject to the same examination and certification requirements as the rest of the voting equipment used in our local elections. While some may characterize our challenge of the use of modems in elections as a quixotic charge, our decision to scrutinize the use of modems was driven by the limited information we were able to cobble together so far in our journey. As we obtain more information, other windmills may well arise.
Without extraordinary efforts to create sunshine, the electronic vote counting that occurs behind the curtain of secrecy will remain in darkness. If the public is not provided with access to review and audit the election process, distrust may well continue to erode confidence in the process. The secrecy of voting must be preserved, but after the election is complete, the public deserves the right to open the ballot box, (now machine), and scrutinize the process. Election officials hold election data in trust on behalf of the public, not to the exclusion of the public. Transparency from, and accountability of our election officials should be embedded into the system. The rapid evolution of technology in the election process quickens the need to normalize public transparency. We have come so far from the wooden ballot box that was opened following the election, to the black box of circuits and motherboards that now count our votes. As the vote counting process modernizes, so should our process of checks and balances.
A good summary of these issues was provided in the Albert Lea Tribune – click here
For more information on the specifics of this lawsuit, visit my profile at www.albertlealaw.com and look for the #transparencyproject link.
Matt Benda
Albert Lea Attorney and Community Advocate