Crow Wing County attorney says board has no authority to perform election audit
Beginning in October, nearly a year after Election Day 2020, a group with concerns about results and electoral processes has repeatedly asked commissioners to check the accuracy of the county’s results as well as conduct an examination of the Dominion Voting Systems tabulators in use to count paper ballots in Crow Wing.
Crow Wing County commissioners have no authority under the law to conduct a forensic audit of the county’s 2020 election results after certification, County Attorney Don Ryan opined Tuesday, Dec. 28.
That legal opinion prompted the board to unanimously support a motion from Commissioner Rosemary Franzen directing staff to prepare a resolution urging Secretary of State Steve Simon to perform an audit of the county’s results. Although the 5-0 vote was met by applause from the gallery of about 70 forensic audit supporters, the board would still vote on whether to approve such a resolution at a future meeting.
Ryan — who outlined every statute, rule and court case he believed relevant to the legal questions the county board asked him to explore — said his interpretation of the law finds the authority to reopen sealed ballots after this much time rests with the Office of the Minnesota Secretary of State, not local authorities.
Legal opinion on requested 2020 election audit expected Tuesday
“My humble, simple country lawyer opinion is that since the Legislature provided for the secretary of state — and only the secretary of state — the ability to review the ballots post-contest of election time frames, that its intent is that this is an exclusive authority vested in the secretary of state and no other entity. Not a county board, not a local election official, not an auditor has the same authority,” Ryan said. “Consequently, I do not believe that you have the authority to grant the request before you do a forensic audit of the 2020 electoral process by directing someone to unseal the ballots, recount them and do the comparison that you want — that’s been requested of you.”
Beginning in October, nearly a year after Election Day 2020, a group with concerns about results and electoral processes has repeatedly asked commissioners to check the accuracy of the county’s results as well as conduct an examination of the Dominion Voting Systems tabulators in use to count paper ballots in Crow Wing. The group said they would raise the funds to cover the cost of such an audit. In early November, Board Chairman Steve Barrows asked Ryan to advise commissioners on whether they could meet the group’s request.
Ryan noted Tuesday the authority to reopen sealed ballots may also rest in the courts, although the time period during which such an action could commence was less clear. In that scenario, a candidate must file paperwork “without unreasonable delay,” presenting an obvious error in ballot counting for a court to hear evidence to support reopening ballots for review.
“However, even if this judicial process would apply, the Minnesota Supreme Court has held that bland assertions that ballots may not have been counted correctly, or in general about an electoral process without specifics of what was done wrong, is insufficient,” Ryan said.
"In all those elections, I have not observed or been made aware of anything that causes me to question the integrity of the Crow Wing County electoral system."
— Crow Wing County Attorney Don Ryan
Ryan began his presentation by outlining his 27 years of experience as Crow Wing County attorney and involvement in 18 elections providing legal consultation.
“In all those elections, I have not observed or been made aware of anything that causes me to question the integrity of the Crow Wing County electoral system. I make no comment on any other electoral system. My focus is strictly on the Crow Wing County electoral system. This is not the first time an issue’s been brought up where there have been questions,” Ryan said.
In concluding his analysis, Ryan said he understood some people would be disappointed by his legal opinion, but he encouraged people to become involved in the 2022 election and to take advantage of the various aspects of the electoral process open to public observation.
“I do note that the 2022 electoral process for determining the accuracy of our optical scanning equipment will begin soon,” Ryan said. “ … I know historically, a lot of people don't show up for that. So there is the process where our head elections official’s going to have to do the accuracy testing for the equipment. … And if it gets through that testing phase, then we go to the public accuracy testing phase to ensure that our equipment is working.
“And again, I encourage everyone to get involved in that process if they have any questions about the accuracy of them.”
Ryan said he was willing to meet with Pastor Ben Davis, who’s taken the lead in representing the group’s concerns, and others “to work with them to try to figure out what their next step may or may not be or to see if there’s a way that we can show to them that our electoral process is fair and accurate here in Crow Wing County.”
Following Ryan’s presentation, the board allowed for a comment period for those wishing to speak on the subject. A number of those who spoke urged commissioners to move ahead with an audit despite Ryan’s opinion, usurping state authority to declare allegiance to the U.S. Constitution.
“You’re saying that the state of Minnesota is going to dictate to this county how we go ahead and run our county?” said Rick Felt, who said he was a Crow Wing County resident. “That’s a dictatorship as far as I’m concerned. We have the authority to declare this county a constitutional county, and Sheriff (Scott) Goddard would have the authority to say, ‘No, hold on state of Minnesota, we’re gonna run our county according to the Constitution of the United States.’ And that is how ‘we the people’ works. Otherwise, why are all of you sitting here?”
Bob Gross, who lives in Cass County but runs businesses in Crow Wing, said only allowing the secretary of state to review ballots post-certification was akin to “the fox guarding the henhouse.”
“I grew up in Minnesota on a farm. You don’t want that happening,” Gross said.
Gross also cited alleged evidence of voting anomalies collected via door-to-door canvassing by some of those who’ve brought concerns to the board. Gross said if one extrapolates the data they’d gathered so far to the entirety of Crow Wing County’s registered voter population, the votes of more than 4,000 people were also suspect.
"I think Don would agree with me here, when you go to court, you have to have actual evidence, and so the ones that were submitted will be looked at and checked, cross-referenced."
— Chairman Steve Barrows
There were 44,217 registered voters in Crow Wing County before Election Day 2020. Another 2,904 voters registered on Election Day. Robin Sylvester, a Jenkins Township resident who’s led the door-to-door effort, later stated the canvassing has thus far resulted in answers from 150 homes, 16 of which reported an issue with their vote when prompted.
Chairman Barrows responded to Gross’ statements by noting the number of allegations thus far received from the group was far less than 4,000 and still required confirmation.
“I think Don would agree with me here, when you go to court, you have to have actual evidence, and so the ones that were submitted will be looked at and checked, cross-referenced,” Barrows said. “And if they are in violation, they’ll be presented to the county attorney for prosecution.”
Sylvester suggested the board consider a “scaled down” version of a forensic audit, which would mean comparing envelopes of absentee and mail ballots to voter rosters. She said the majority of anomalies her group believed occurred happened through the mail.
“Now what we would like to do is videotape our review of those envelopes and the rosters,” Sylvester said. “And when we find one that was an affidavit of a lost vote/phantom vote, let’s work together with the sheriff and the county attorney and our team to go back to that resident that signed that affidavit and have them confirm that, ‘That is not my signature. That was not my envelope.’”
Julie Dillon, who said she’s a former Crow Wing County resident and still has an office there, thanked Ryan for his opinion and the work behind it. Dillon suggested while the board might not have the authority, it could ask the secretary of state to exercise the authority of that office to examine the results. She also requested the board take action now to ensure integrity of future elections by removing Dominion tabulators from the equation and hand-counting all ballots.
“I strongly believe our system is broken … and we’re trying to go back and prove that, if you will, but I also think that going forward we need to fix — we need to fix our upcoming elections, which is what we're trying to do by fixing the previous election,” Dillon said.
Board takes action
After no one else stood to speak, Commissioner Franzen also thanked Ryan for the work behind his legal opinion.
“I think restoring people's faith in our elections is an important thing and I think we need to support that. I don't want us to just walk away from this concern. But our county attorney has told us that we can't do anything about this,” Franzen said, before she was interrupted by members of the audience disagreeing.
“Please, please,” Barrows said, and Franzen continued.
“I think Ms. Dillon, I think she had a good thought, and I would like all the citizens to have faith in the integrity of our elections. And I would like to offer a motion to direct staff to bring a resolution for the next meeting asking the secretary of state to very strongly consider authorizing a request for forensic audit to ensure the integrity of Crow Wing County's elections for 2020 and for all future elections.”
"I think restoring people's faith in our elections is an important thing and I think we need to support that. I don't want us to just walk away from this concern."
— Commissioner Rosemary Franzen
The motion was seconded by Commissioner Doug Houge and all five commissioners voted in favor.
Barrows thanked the group for their civility over the course of a number of county board meetings.
“I appreciated the things that you’ve said, the concerns that you’ve brought to us. You’ve done it in a very orderly manner and a respectful manner,” Barrows said. “And I want to applaud you folks in how you’ve conducted yourself with your concerns to us as your board. So thank you very much.”
CHELSEY PERKINS, community editor, may be reached at 218-855-5874 or email@example.com . Follow on Twitter at twitter.com/DispatchChelsey .