Stonewalled: St. Louis County refuses to release public voter information

November 6, 2012


Richard Thomas
Zenith City Weekly

For seven months and counting, St. Louis County officials have refused to say how many county voters may find themselves unable to cast a ballot on November 6.

Even as the Zenith received reports of county residents finding their eligibility to vote challenged, County officials gave conflicting reasons and false statements about their refusal to release the information—despite the State of Minnesota deeming it public.

It began last March, during the Morse Township election, when Ely resident Anne Stewart-Uehling was surprised to find that her right to vote had been called into question. She had to re-register and show photo identification to prove her residence at the home she’s lived in for 22 years.

Stewart-Uehling says she was told that 140 people in Morse Township (which has a population of 1,200) had their votes challenged. “This will be a mess on Election Day,” she said, referring to November 6, when far more people will turn out to vote.

Stewart-Uehling spoke to an election judge, but was told they had no information about who challenged her or why. “It was like I’d never registered.”

In April, the Zenith contacted Patricia Stolee, then-director of the St. Louis County Board of Elections. (Stolee moved on to a private sector job in September. Roberta Museta is the current director.)

“The County doesn’t oversee townships,” Stolee said and directed questions to Nick Wognum, Morse Township clerk and publisher of the Ely Echo.

Wognum said the list of challenged voters came from the County, but he would not divulge the number of voters who had been challenged. He said he had no information as to the reason.

Contacted again, Stolee said the challenge to Stewart-Uehling’s vote occurred through “normal procedure.” The Ely School District had sent notices about a local referendum to residents at their physical addresses. Mailings that were returned were reported to the County. The superintendent of the Ely School District did not return request for comment.

Stolee refused to say how many voters had been challenged and asked the Zenith to submit a written data practices request. Such requests are governed by the Minnesota Data Practices Act, or Chapter 13. Under Chapter 13, government information is public unless “specifically provided otherwise by law.”

On April 9, the Zenith delivered the written request, but was told by an employee in the Auditor’s Office that the County would need to consider “research fees” before releasing the information.

Chapter 13 allows government entities to charge for copies in most cases, but does not allow charges for retrieving data (except in certain circumstances) nor for separating private from public information.

The government entity has to decide within a “reasonable amount of time” whether the requested information is public or not. If the request is refused, the government entity must provide the statute under which the information is not public.

On April 11, Stolee responded that the number of challenged voters in Morse Township is not public, citing Minnesota Statutes section 201.091, which governs voter registration information.

However, this reason was already dismissed 12 years ago by the Information Policy Analysis Division (IPAD), a state agency responsible for public education about data practices and for preparing advisory opinions in the event of disputes. IPAD’s opinions are not law, but they must be given deference in court. Compliance with an IPAD opinion provides some legal protection.

The Commissioner of the Department of Administration (which encompasses IPAD) determined in 2000:

Although section 201.091 does classify certain voter data as not public, it does not classify challenge status not public. Therefore, based on the presumption [that government data is public unless otherwise specified], the Commissioner opines that the challenge status data are public.

The Zenith resubmitted its request on April 23, citing this opinion. Deputy County Administrator Gary Eckenberg responded May 3:

[I]t remains the opinion of the County Attorney that Minn. Stat. 201.091 prohibits the release of the information you have requested. The statute has been amended several times since the IPAD opinion you provided was written...

The statute has been amended five times since 2000, but none of those amendments addresses the public/private classification at all, let alone classifies voter challenge status as non-public.

On July 2, the Zenith resubmitted the request to County Attorney Mark Rubin, pointing out that no such amendment exists and noting that, even if the information were not public, as the County claimed, the number of challenged voters is “summary data,” which Chapter 13.05 requires them to release.

“Summary data” is a synopsis derived from private government information. For example, the identity of food stamp recipients is not public, but the raw number of people who receive food stamps—the “summary data”—is public.

In other words, even by the County’s own argument, the information sought by the Zenith was public. Still, they refused to release it.

On July 5, Rubin responded that he was not involved with our requests. Five days later, Eckenberg replied, “[M]y May 3 response...represents St. Louis County’s final position on this matter.”

Eckenberg and Rubin claimed the County had already released all public information and had provided instructions for accessing it. Both claims are false.

On August 20, the Zenith appealed to IPAD, which issued an opinion in our favor on October 22:

The plain language of section 201.091, subdivision 4, makes clear that other voter information...may be accessible by the public. Furthermore, while the master list is properly withheld from the public, the Zenith City Weekly was not requesting access to it.
In fact, voter challenge status is not an element on the master list. The general presumption that government data are public is not reversed in the case of data on registered voters. Here, where there is no statutory classification of data, the data are presumptively public...
St. Louis County did not respond appropriately to [the
Zenith’s] stating that the data were not public under Minnesota Statutes, section 201.091.

“Every member of the public has the right to review data at a reasonable time and place,” says Mark Anfinson, attorney for the Minnesota Newspaper Association, of which the Zenith is a member.

“The agency can take a reasonable amount of time, but it’s still supposed to be prompt. These kind of requests can’t be made too often. If voters and citizens routinely asked, it wouldn’t be a problem.”

Yet the Zenith still has not received any information about the number of voters challenged. County officials say it will be a few more weeks before they release it—a full month after IPAD’s opinion and more than eight months since the original request.

Eckenberg and Rubin deferred questions to Timothy Lee, head of the Civil Division of the County Attorney’s Office. Lee declined to answer any questions, citing attorney-client privilege.

County Auditor Don Dicklich says the Board of Elections is dealing with the November 6 election, and “probably won’t be able to start pulling the information until November 19. I don’t know how long it will take.”

He would not allow the Zenith to view the information for ourselves, which is normally allowed under Chapter 13, though there are exceptions.

On November 1, he refused to allow Zenith staff in his office nor would he accept phone calls to discuss whether the challenge information will change on November 6, when those who can prove their residency, like Anne Stewart-Uehling, might get their challenges reversed.

An assistant told the Zenith that the Auditor’s Office cannot guarantee the information they eventually release will show challenges that occurred before November 6.

Thus Stewart-Uehling—and the rest of us—will never know how many St. Louis County residents were denied their right to vote prior to Election Day 2012.

Taylor and Jennifer Martin-Romme assisted with this story.

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