Kieffer v. Governing Body of the Mun. Rosemount

• Decision Date: 09 August 2022
• Docket Number: A22-1081
• Citation: 978 N.W.2d 442 (Mem)
• Parties: Bill KIEFFER, et al., Petitioners, v. The GOVERNING BODY OF the MUNICIPALITY ROSEMOUNT, MN, Respondents.
• Court: Minnesota Supreme Court

978 N.W.2d 442 (Mem)

Bill KIEFFER, et al., Petitioners,

v.The GOVERNING BODY OF the MUNICIPALITY ROSEMOUNT, MN, Respondents.

A22-1081

Supreme Court of Minnesota.

August 9, 2022

ORDER

Late in the day on August 2, 2022, petitioners Bill Kieffer and Erik van Mechelen filed a petition pursuant to Minn. Stat. § 204B.44 (2020), challenging the electronic voting system (EVS) that will be used in the City of Rosemount in Dakota County for the August 9, 2022, primary. The City of Rosemount has used an EVS made by Dominion Voting Systems Corporation for several election cycles. Petitioners allege that in the prior elections, the City of Rosemount used version 4.14 of the Dominion Voting Systems Democracy Suite, the software that works with the electronic voting system. Rosemount plans to use a different version of the software, version 5.5-C (Dominion 5.5-C) for the upcoming primary. Petitioners claim that certifications issued by the Secretary of State and U.S. Election Assistance Commission regarding Dominion 5.5-C show that the City of Rosemount will be using a "new voting system" under Minn. Stat. § 206.58, subd. 1 (2020).¹ Petitioners claim that the use of a "new voting system" triggered Rosemount's obligation under section 206.58 to "disseminate information to the public about the use of a new voting system at least 60 days prior to the election" and "provide for instruction of voters with a demonstration voting system in a public place for the six weeks immediately prior to the first election at which the new voting system will be used." Petitioners allege that the new voting system may not be used in the August 9 primary in Rosemount because these requirements under section 206.58 have not been met.

Respondents are the governing body of the City of Rosemount, i.e., the mayor and the other members of the city council (collectively the "City of Rosemount"). We allowed the City of Rosemount and the Secretary of State to respond to the claims made by petitioners. We also ordered petitioners, and directed the City of Rosemount and the Secretary of State, to address whether laches applies to the petition.

The City of Rosemount and the Secretary of State both filed responses disputing the merits of petitioners’ claims and arguing that the petition should be dismissed based on laches. On the merits, the City of Rosemount and the Secretary of State argue that a "new voting system" for purposes of the public information and voter information provisions in section 206.58 does not turn upon how software upgrades are characterized in certification documents. They assert that the focus of the voter-instruction process set forth in section 206.58 is on instructing voters as to how they will submit their ballots under a new balloting process, not on allowing the public to inspect computer code for voting machines. In other words, according to the Secretary of State, "a system ... is ‘new’ when it requires voters to submit ballots through a process that was different than the one they were previously familiar with—a process, that is, that many voters would doubtlessly need ‘instruction’ on."

And as the City of Rosemount points out, the City (under a contract with Dakota County) has been using the same voting machines since the 2016 election (when the public information and voter instruction required under section 206.58 was given) and will be using the same voting machines again in the August 9, 2022 primary. The City of Rosemount and the Secretary of State maintain that although there have been software upgrades, the voting machines and the voter experience in casting a ballot remain the same. Thus, they contend that the use of Dominion 5.5-C does not constitute a "new voting system" requiring new public information and voter instruction to be provided under section 206.58.

We take no position on the merits of the parties’ substantive arguments regarding section 206.58 and its applicability here because we conclude that the petition should be dismissed based on laches grounds. We have applied laches to election petitions brought under section 204B.44, dismissing petitions when the petitioner does not proceed " ‘with diligence and expedition in asserting his claim.’ " Clark v. Pawlenty , 755 N.W.2d 293, 299 (Minn. 2008) (quoting Marsh v. Holm , 238 Minn. 25, 55 N.W.2d 302, 304 (1952) ). "[T]he practical question in each case is whether there has been such an unreasonable delay in asserting a known right, resulting in prejudice to others, as would make it inequitable to grant the relief prayed for." Winters v. Kiffmeyer , 650 N.W.2d 167, 169 (Minn. 2002) (citation omitted) (internal quotation marks omitted).

"The first step in a laches analysis is to determine if petitioner unreasonably delayed asserting a known right." Monaghen v. Simon , 888 N.W.2d 324, 329 (Minn. 2016). We have recognized the general principle that "a party is not guilty of laches until he discovers the mistake, or until he is chargeable with knowledge of facts from which, in the exercise of proper diligence, he ought to have discovered it." Clark v. Reddick , 791 N.W.2d 292, 294 (Minn. 2010) (citation omitted) (internal quotation marks omitted). Here, petitioners had actual knowledge of their claims for more than a month before the petition was filed. The computer expert upon whom petitioners rely notified one of petitioners’ declarants on May 27, 2022, that Dakota County, where Rosemount is located, was upgrading to Dominion 5.5-C and about the requirements cities have under section 206.58 when they use a new voting system. And another declarant in support of petitioners, in turn, received a letter on June 29, 2022, from the Dakota County Attorney, making clear Dakota County's position that its use of Dominion 5.5-C is not a "new electronic voting system," and thus, "the municipalities are not obligated to disseminate information to the public about a ‘new electronic voting system’ under Minn. Stat. § 206.58, subd. 1."

Petitioners can therefore be deemed to have had actual knowledge of all relevant facts needed to bring a claim by June 29, 2022: that Dominion 5.5-C would be used for the 2022 elections by the municipalities in Dakota County, which included Rosemount, and that the municipalities would not be providing the public the information and voter instruction referred to under section...