Paper vs. electronic voter rosters: Who gets to decide?

Voter rosters, often called pollbooks, are used both in the operation of each polling place and in the integration of polling place activities with the larger election.

The roster allows election judges to check in voters who have up-to-date registration in the precinct and to update or register those who don’t.

As absentee ballots continue to arrive at the county throughout Election Day, the roster allows the county to determine which signature envelopes can be opened and which must remain sealed because the voter has already voted at the polling place. For those envelopes that are opened, marking the roster prevents a later polling-place vote.

Finally, once the poll closes, the county uses the roster to update longer-term voter records.

Electronic rosters facilitate all these uses, but the largest payoff is for the two in which the county plays the primary role: absentee-voting coordination and the updating of records. 

The jurisdictions’ claims are set out in briefs and the court will hear oral arguments on Sept. 8. Briefs were also submitted by the secretary of state, who was named as another respondent, and the League of Women Voters Minnesota, which was granted friend-of-court status.

Oak Grove’s desire for control is rooted in the lobbying the city has received from the Anoka County Election Integrity Team. That group has raised some very speculative scenarios for how electronic rosters could be used to undermine an election. However, they’ve settled on local control per se as a more palatable argument.

Therefore, the court is not being asked to decide whether the use of electronic rosters is a wise policy choice. Rather, the case concerns which jurisdiction gets to make this choice. At least one of the two is granted discretionary authority by section 201.225 of the Minnesota Statutes:

“A county, municipality, or school district may use electronic rosters for any election. In a county, municipality, or school district that uses electronic rosters, the head elections official may designate that some or all of the precincts use electronic rosters.”

In the city’s view, the statutory language that “a county … may use electronic rosters” and “designate that some or all of the precincts use electronic rosters” must be understood as referring only to precincts that lie outside of all municipalities, i.e., unincorporated areas of a county. Only in those precincts, the city argues, is it the county and not the city that is using the rosters.

Anoka County is one of the 71 counties, out of 87 total, that have no such precincts, although Oak Grove does not mention that fact. Thus the county would have no authority to designate electronic roster use in any precinct, not only none of those in Oak Grove, but also none of those in the other 20 municipalities.

Oak Grove contends the Legislature’s grant of county authority was referring to the other 16 counties, although again, they don’t mention that number. To take one example, Hennepin County would have the authority to designate “some or all” of its single unorganized territory precinct, Fort Snelling, while lacking that authority for the hundreds of precincts in its 45 cities.

Anoka County and the secretary of state agree with the city to a degree. They agree that only one jurisdiction is granted authority, notwithstanding the language that “a county, municipality, or school district” may do so “for any election.” The disagreement is over which jurisdiction that exclusive authority rests with.

The county and secretary argue that it depends on the election. For a stand-alone city or school district election, it is the city or school district. But for an election with county, state, and federal offices, it is the county.

Beyond its practical virtues, this second reading of the statutory language comes closer to giving all its words real meaning. The city interpretation leaves one wondering whether the Legislature would grant so little authority to counties — none at all, to most — using language that mentions “a county” without restriction and “all precincts” without limitation.

Contrast this with the language the Legislature used when assigning responsibility for notification of polling place changes: “By Dec. 31 of each year, the governing body of each municipality and of each county with precincts in unorganized territory must designate by ordinance or resolution any changes to a polling place location.” (Section 204B.16) Here, it is much more explicit which counties are affected: those “with precincts in unorganized territory.”

But the county’s preferred reading also falls somewhat short of giving the legislative language full meaning. What does it mean that a “municipality …may use electronic rosters for any election? (Emphasis added.) Does that really just mean for any election the municipality administers separately?

There’s a third possible interpretation, mentioned by neither party, that resolves this puzzle. Conveniently for Anoka County, it would be indistinguishable from their own interpretation so far as its effect on the case at hand. The difference would only arise in counties that had not designated all precincts to use electronic rosters.

The statute grants authority to both the county and the city. Each can choose to use electronic rosters. Each can designate precincts where they are to be used. This does not create any potential for conflicting direction from the two jurisdictions because neither is granted any authority to decline the use of electronic rosters or to designate precincts for paper rosters. Paper rosters simply remain as the default if no jurisdiction designates electronic roster use.

That is, electronic rosters are used if so chosen by the county, the city, or both. In Anoka County, there is no room for a city to meaningfully issue its own designation of electronic roster use because the county has already designated all precincts. But not all counties have done so; at the other extreme, there are counties that have not designated any precincts.

For example, in Nicollet County, North Mankato or Saint Peter would be free to provide notice of its own designation of electronic roster precincts because “a … municipality … may use electronic rosters for any election.”  The burden this would impose on the heretofore paper-only county might be unwelcome, but arguably it is allowed by the statute.

Unlike the limitation of county authority to unorganized territory, this isn’t a narrow cabining of the authority of either jurisdiction. It simply reflects the reality that each can render the other redundant if they make the same designation.

The court prefers to ground its decision in the text of the statute, and I see no reason why it can’t do so. However, if there is any need to turn to legislative history to resolve ambiguity, it wouldn’t change the outcome.

I served on the legislative task force that drafted section 201.225, and so I paid close attention to its progress through legislative committees and floor sessions. (Indeed, I testified before the conference committee.) Legislators were well aware of the history of cities in Minnesota taking initiative to try electronic rosters out without waiting for county-level action. 

They passed a bill that preserved that city role while allowing counties to adopt the city-tested innovation.