A hidden aspect of the secretary of state’s race

Since the 2020 election, voting – for various reasons – has soared to the top of the public’s focus. “Voting is fraudulent or too prone to fraud,” “Voting is difficult or too Jim Crow-like,” are some of the varying arguments.

Regardless of the merits of these positions and those in between, this focus on voting has jolted the once sleepy races for secretary of state into higher prominence than years past. Here in Minnesota, a popular secretary state, twice elected, won his 2018 race with 52.25% of the vote. If he loses in his third running, what are the opportunities for major changes to voting in Minnesota? The answer depends on who controls the legislature and the governor’s seat.

In addition to Minnesota gaining a new secretary of state, we could also see a new governor and either a legislature with single-party control, or the continued moderating influence of a split legislature. These political variations are important to keep in mind because the secretary of state alone can’t pass law, and a new secretary of state would be limited in forging new policy if faced with a Democratic governor or a Democratic-controlled House of Representatives or Senate.

The secretary’s rules

Although the secretary of state alone can’t pass law, a secretary can, in fact, adopt enforceable regulations through rulemaking. Overwhelmingly the province of state agencies such as the Department of Health or Pollution Control Agency, rulemaking provides an avenue for unelected officials to make legally enforceable regulations.

While the benefits of rulemaking have been previously touted in this publication and others, a reminder that rulemaking is a complicated procedure, full of multiple checks and balances to ensure agency accountability and transparency for the public. Furthermore, the legislature and the governor must first agree to gift agencies rulemaking authority, authority that, if used, must closely follow the legislature’s directive or risk being flagged by a judge for exceeding this legislative directive.

Despite the arduous and fraught nature of rulemaking, the secretary of state’s office hasn’t shied away from adopting rules, as sometimes mandated by the legislature, for a multitude of purposes:

• International student exchange
• Voter registration
• Recall petitions
• Absentee ballots
• Presidential nomination primary
• Voting-system testing
• Recounts
• Election-judge training
• Redistricting
• Safe at Home program
• Minnesota Electronic Authentication Act

Checking the secretary’s rules

With 13 active rule chapters, the secretary of state’s portfolio rivals many of Minnesota’s top rulemaking practitioners. Since 2010, when the office became helmed by a Democrat, the secretary of state has adopted seven rules, according to the Rules Status System of the Revisor’s Office. But the secretary hasn’t been immune to rulemaking’s checks and balances.

For example, out of the seven adopted rules, one had a legal defect – determined by a nonpartisan administrative law judge – that the office had to fix before it could adopt the rule. And in 2021, an office rule on absentee ballots that are reviewed by local ballot boards was challenged by the Minnesota Voters Alliance (Minn. Voters All. v. State). Although the challenge was dismissed because the organization lacked standing, the challenge shows the remedies available to those convinced that an administrative rule is unlawful.

Another check on rulemaking is the governor’s authority to veto a rule. But because the governor appoints commissioners to implement the governor’s agenda, this authority has been exercised only once. Yet the veto further demonstrates the uniqueness of the secretary of state’s office, both in its rulemaking authority among Minnesota’s constitutional officers (state auditor, attorney general, lieutenant governor, and governor) and the office’s susceptibility to having its rules vetoed.

The lone veto, in 2008, involved a Democratic secretary of state and a Republican governor. In vetoing three rule requirements, the governor espoused a common refrain against rulemaking:

The proposed rules create “alternative” procedures that do not contain the same rigor or procedural safeguards as the specific statutory requirements. If the statutory requirements and safeguards are inadequate, changes should occur through the legislative process rather than agency rulemaking.

Come November, if the current governor remains and a new secretary of state is sworn in, will similar pronouncements be made on attempted secretary of state rulemakings? That remains to be seen. But what doesn’t is the ability for the secretary of state to adopt rules to make specific Minnesota’s election laws and the checks that exist to temper that ability.

Ian Lewenstein has worked for the Minnesota Legislature and several state agencies. His comments represent his views alone.