Minnesota Cases June 09, 2021: Bergstrom v. McEwen

Case Description

Donna Bergstrom, Duluth, Minnesota, pro se.

Charles N. Nauen, David J. Zoll, Kristen G. Marttila, Rachel A. Kitze Collins, Lockridge Grindal Nauen P.L.L.P., Minneapolis, Minnesota, for respondent.

OPINION

GILDEA, Chief Justice.

This appeal is taken from the district court's order that dismissed appellant Donna Bergstrom's election contest filed under Minn. Stat. § 209.021 (2020). On appeal, we consider three claims: whether Bergstrom was prejudiced by the delay in providing notice of the election contest to the chief justice, see Minn. Stat. § 209.10, subd. 1 (2020) (requiring notice of the election contest to be submitted to the chief justice within 3 days of receipt); whether her claim alleging violation of her civil rights under the Voting Rights Act, 52 U.S.C. § 10101, is properly before us; and, whether the district court erred in dismissing

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Bergstrom's election contest because it failed to state a legally sufficient claim upon which relief can be granted. We affirm.

FACTS

Donna Bergstrom was a candidate for election to Senate District 7, in the 2020 election. Following the election on November 3, 2020 and the canvass of the results by St. Louis County, respondent Jen McEwen, her opponent, was certified as the winner of the election. Bergstrom requested a recount of the votes cast in one precinct in Senate District 7, which resulted in a net increase of 3 votes for Bergstrom.

On December 11, 2020, after the recount was completed, Bergstrom filed a notice of election contest in St. Louis County District Court, under Minn. Stat. § 209.021. Bergstrom named McEwen and the St. Louis County Auditor as contestees. Bergstrom alleged that "irregularities in the conduct of the November 3, 2020 state general election and in the canvass of absentee ballot votes" raised questions over "who received the largest number of votes legally cast" in the election in Senate District 7. She also asserted that the contest was brought "on the grounds of deliberate, serious, and material violations of Minnesota Election Law."

The specific alleged irregularities in the conduct of the election included whether the absentee ballot board established for the election was "properly constituted," see Minn. Stat. § 203B.121, subd. 1 (2020) (identifying the members of the board), and whether that board allowed for bipartisan review of absentee ballot return envelopes; whether statutory requirements that govern absentee ballots cast at nursing homes, assisted living, and similar facilities were followed; whether the statutory requirements were followed by persons who registered to vote on election day; whether there were discrepancies in vote totals due to algorithm anomalies in voting software, an "egregious possibility" of fraud, or alleged tampering with voting machines; and whether the State Canvassing Board and the St. Louis County Canvassing Board were required to allow Bergstrom to make public statements before those bodies certified the election results.

Bergstrom asserted three claims in her election contest: alleged violations of the First Amendment and Equal Protection Clause of the United States Constitution based on a constitutional right to participate in elections on an equal basis as other citizens, see U.S. Const. amend. I ; U.S. Const. amend. IV, § 1; an alleged violation of the Separation of Powers Clause, see Minn. Const. art. III, based on "conflicting election rules" adopted by the Minnesota Secretary of State for the 2020 election; and an alleged due process violation, under the Fourteenth Amendment to the United States Constitution and Article I of the Minnesota Constitution, based on disparate treatment as between in-person, day-of-the election voters and voters who cast a ballot from home.

As relief, Bergstrom requested disclosure of voter data and records for "first time voters" and "same day ballots"; "guarding" and "inspection" of all absentee ballots and "election materials" related to the ballots, under Minn. Stat. §§ 209.05 –.06 (2020); disclosure of information regarding voting machines and systems used in St. Louis County, including the software, training protocols, and instruction manuals;

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disclosure of the process used to facilitate voting at nursing homes, group homes, assisted living, or similar facilities, under Minn. Stat. § 203B.11 (2020) ; and disclosure of names and other information regarding persons who served on ballot boards in St. Louis County or worked on the post-election review conducted under Minn. Stat. § 206.89 (2020) (establishing procedures for a post-election review of voting systems). Bergstrom asked the district court to allow "a true count of the legally cast votes through a process of discovery."

On December 18, 2020, the district court sent notice of the election contest to the chief justice by certified mail, see Minn. Stat. § 209.10, subd. 1 (requiring the district court to "submit one copy of" the notice "to the chief justice of the supreme court by certified mail" within 3 days of receipt). The chief justice then provided the parties with the names of the judges available in the Sixth Judicial District to preside over the election contest, see Minn. Stat. § 209.10, subd. 2 (2020), and the parties selected a judge through an alternating strike process, id.

McEwen moved to dismiss Bergstrom's notice of election contest on several grounds. First, she asserted that Bergstrom's contest was untimely because it was not brought within 7 days after the St. Louis County Canvassing Board certified the results of the election. Second, she asserted that she was not properly served by certified mail with Bergstrom's notice. Third, she asserted that the allegations in Bergstrom's notice failed to state a legally cognizable claim under Minnesota Statutes chapter 209 (2020).

Bergstrom opposed McEwen's motion, asserting that her election contest was timely filed and properly served. She also alleged that the notice of contest identified the "grounds" on which she contested the election, namely "irregularities in the conduct" of the election and in the "canvass of absentee ballot votes." She explained that the contest is brought "over the question of who received the largest number of votes legally cast, and on the grounds of deliberate, serious, and material violations of Minnesota Election Law." She again asked the district court to allow an inspection of the ballots cast in all precincts in Senate District 7, see Minn. Stat. § 209.06.

The district court held a hearing on January 4, 2021. In an order filed on January 5, 2021, the district court denied McEwen's motion to dismiss the contest as untimely, concluding that the time to file an election contest ran from the certification of the results after the recount in precinct 8 for Senate District 7. The court also concluded that service of the election contest on McEwen was timely, declining to address McEwen's challenge to the particular form of certified service that Bergstrom used.

Finally, the district court granted McEwen's motion to dismiss under Rule 12.02(e) of the Rules of Civil Procedure, concluding that the allegations of Bergstrom's notice of contest did not state a claim upon which relief could be granted, including under our decision in Christenson v. Allen , 264 Minn. 395, 119 N.W.2d 35 (1963). Reviewing each of the allegations on which Bergstrom relied to assert that irregularities in the conduct of the election presented a question as to who received

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the highest number of votes legally cast in the election, the district court concluded that even "if proof were provided on these issues at trial," Bergstrom did not claim that she would have won the election. Rather, the court concluded, the allegations in total represented a "somewhat vague feeling that something was not right" with the election.

Bergstrom filed a timely appeal from the district court's decision on January 15, 2021. See Minn. Stat. § 209.10, subd. 4 (requiring an appeal to be filed "no later than ten days after ... entry" of the district court's decision).

ANALYSIS

This appeal presents three issues: whether Bergstrom was prejudiced by the delay in submitting a copy of her notice of election contest to the chief justice; whether Bergstrom's claim for an alleged civil rights violation in the election is properly before us; and whether the district court erred in dismissing Bergstrom's notice of election contest for failure to state a claim upon which relief can be granted. We review a trial court's conclusions on legal questions de novo. In re Contest of Gen. Election Held on Nov. 4, 2008 , 767 N.W.2d 453, 458 (Minn. 2009).

I.

Under Minnesota Statutes § 209.10, the district court must "submit one copy" of the notice of election contest to the chief justice "within three days of receipt of the notice of contest." Id. , subd. 1. Within five days of receiving that notice, the chief justice provides the parties with a list of the judges available in the judicial district to preside over the case. Id. , subd. 2. Using that list, the parties "meet together and, by alternating strikes they ... remove the names of all judges until only one remains." Id.

Bergstrom asserts that the district court failed to give a copy of her notice of election contest to the chief justice within three days after the court received her filing. She is correct. Bergstrom filed the notice of election contest with the district court on Friday, December 11, 2020; it was accepted by court administration and docketed on Monday, December 14, 2020. On Friday, December 18, 2020, a copy of the notice of election contest was sent to the chief justice by certified mail. Whether the district court received the notice of election contest when submitted for filing on December 11 or when accepted and docketed for filing on December 14 is irrelevant; under either scenario, the notice required by section 209.10, subdivision 1, was not sent to the chief justice "within three days of receipt."

Bergstrom contends that this lack of timely notice impeded the progress of her election contest. She notes that the district court did not address her motion to proceed with an inspection of the ballots, and states that the time available to the district court to resolve the election contest was shortened. See

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Minn. Stat. § 209.10, subd. 3 (requiring the district court to "convene the proceeding" within 15 days after a notice of contest is filed and "decide the contest, issue appropriate orders, and make written findings of fact and conclusions of law"). She asserts that the intent of the notice provision in section 209.10 was "subverted" and, thus, due process was violated.

McEwen disagrees with this conclusion. She argues that Bergstrom was not prejudiced by the untimely notice to the chief justice because the election contest was dismissed based on its legal insufficiency, not based on timing concerns.

We have urged parties in election matters to proceed expeditiously in asserting their claims in a judicial forum given the time constraints associated with elections. See, e.g. , De La Fuente v. Simon , 940 N.W.2d 477, 485 (Minn. 2020) ; In re Youngdale , 232 Minn. 134, 44 N.W.2d 459, 464 (1950) ("In contests over nominations and elections, it is highly important that the dispute be disposed of speedily in order that the election machinery may not be completely thrown out of gear."). We have urged the same attention to the statutory requirements for election contests, given that "the legislature convenes only a short time after the canvass of an election." Petrafeso v. McFarlin , 296 Minn. 120, 207 N.W.2d 343, 346 (1973). Equally important to the timely resolution of disputes over an election is the interest of voters in the certainty and finality of election results. See id. at 347 (noting that "voters themselves are entitled" to a decision on the election contest); see also In re Election Contest, Vill. of Alden , 122 Minn. 149, 142 N.W. 15, 15 (1913) (stating that the purpose of a statute establishing a deadline for a hearing to be held in an election contest is "to speed the hearing" and "hasten contests").

Despite the untimely notice and our insistence on attention to deadlines in election matters, we cannot conclude that the delay in providing notice of the contest to the chief justice in this case caused prejudice to Bergstrom. In re Child of B.J.-M. & H.W. , 744 N.W.2d 669, 673 (Minn. 2008) (stating that prejudice "is an essential component of the due process analysis"). The parties kept the district court apprised of their respective positions while waiting for the judge selection process to begin: Bergstrom filed a petition for an inspection of the ballots, McEwen moved to dismiss Bergstrom's election contest on multiple grounds, and Bergstrom filed a response in opposition to that motion. Bergstrom had a full opportunity to assert her positions before the district court, in writing and at the hearing on McEwen's motion. Further, though a delay occurred, it was a matter of days. Of course, the proceedings in this election contest were expedited, as all election disputes are, and less than 4 weeks elapsed from the initiation of Bergstrom's election contest to the hearing on January 4, 2021. But we cannot conclude that a difference of 1 to 3 days in delivering the notice to the chief justice would have substantially altered the timing of the proceedings in this contest.

We reiterate our expectation that proceedings in election disputes—whether undertaken by the parties or through court processes—must adhere to statutory deadlines and occur without delay. Nevertheless,

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in this case we conclude that the untimely notice under Minn. Stat. § 209.10, subd. 1, does not warrant relief.

II.

In her brief filed in this appeal, Bergstrom asserts that election officials failed to follow enacted election laws during the 2020 election with respect to absentee voters and absentee ballots and, thus, she cannot be certain whether the votes cast in Senate District 7 were "counted and recorded as per each voter's choice." This irregularity, she asserts, violates her civil rights under the Voting Rights Act, 52 U.S.C. § 10101, subd. 2.

This claim was not asserted in Bergstrom's notice of election contest, nor did she raise it before the district court. A claim that was not raised below and presented to the district court for decision is not considered on appeal. In re Stadsvold , 754 N.W.2d 323, 327 (Minn. 2008) (declining to address an issue that was not presented and addressed below); Toth v. Arason , 722 N.W.2d 437, 443 (Minn. 2006) (declining to address a claim alleging a violation of the Consumer Fraud Act that was first raised on appeal). We therefore decline to address this claim.

III.

We turn now to the district court's decision to dismiss Bergstrom's election contest. "Any eligible voter, including a candidate, may contest" the election of a person "for whom the voter had the right to vote if that person is declared" elected to a state legislative office. Minn. Stat. § 209.02, subd. 1. The contest may be brought "over an irregularity in the conduct of an election or canvass of votes, over the question of who received the largest number of votes legally cast," or "on the grounds of deliberate, serious, and material violations of the Minnesota Election Law." Id.

Bergstrom's notice of election contest asserted all of these challenges: alleged "irregularities in the conduct of the November 3, 2020" election, a "question of who received the largest number of votes legally cast," and "deliberate, serious, and material violations of Minnesota Election Law." In addition to requesting an inspection of the ballots cast, Bergstrom sought disclosure of voter records, voting systems information, and other election-related materials. She asserted that the "validity of the results" of the election are at issue and asked for "a true count of the legally cast votes through a process of discovery."

The district court granted McEwen's motion to dismiss. The court concluded that the allegations of Bergstrom's election contest did not "pass muster" under Minn. R. Civ. P. 12.02(e), because she failed to assert, by a plain statement, that the result of the election would be different if she prevailed on any of her claims. According to the district court, the "vague feeling that something was not right" with the election "is not enough to move forward."

Bergstrom asserts that the district court erred in dismissing her election contest without allowing the ballot inspection or requested discovery. Because her notice complied with the plain language of section 209.021, by identifying alleged irregularities in the conduct of the election and alleged violations of Minnesota election laws, Bergstrom argues that her election contest should not have been dismissed before a trial on the allegations. She also contends that a contest can be brought under chapter 209 to determine whether the election "was conducted legally, ethically, and materially correct."

A contestee may move to dismiss under Minn. R. Civ. P. 12.02(e) for failure to state a claim upon which relief can be granted to challenge the legal sufficiency

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of the grounds on which an election contest is based. See, e.g. , Derus v. Higgins , 555 N.W.2d 515, 516 n.4 (Minn. 1996) (stating that a motion to dismiss an election contest was properly brought under Rule 12.02(e) ); Franson v. Carlson , 272 Minn. 376, 137 N.W.2d 835, 839 (1965) (explaining that an election contest is a "special proceeding," and the Rules of Civil Procedure govern unless those rules are inconsistent with the procedures in the statute). We review a decision to dismiss a claim under Rule 12.02 de novo. Halva v. Minn. State Colls. & Univs. , 953 N.W.2d 496, 500 (Minn. 2021).

We begin with a review of pleading standards and requirements generally and for election contests specifically. Minnesota Rule of Civil Procedure 8.01 requires the pleader to "set[ ] forth a claim for relief" that "contain[s] a short and plain statement of the claim showing that the pleader is entitled to relief." A notice that challenges the election of a person to office "must specify the grounds on which the contest will be made." Minn. Stat. § 209.021, subd. 1. "We accept the facts alleged in the complaint as true and construe all reasonable inferences in favor of the nonmoving party." Walsh v. U.S. Bank, N.A. , 851 N.W.2d 598, 606 (Minn. 2014). We consider whether the facts alleged in the complaint set forth a legally sufficient claim for relief. Halva , 953 N.W.2d at 503. But we are not bound by legal conclusions stated in a complaint. Id. at 501 & n.2 ; Walsh , 851 N.W.2d at 603 ; see also Hancock v. Lewis , 265 Minn. 519, 122 N.W.2d 592, 595 (1963) (rejecting allegations in an election contest that sought to "declar[e] the whole election invalid"); Soper v. Bd. of Cnty. Comm'rs of Sibley Cnty. , 46 Minn. 274, 48 N.W. 1112, 1112 (1891) (rejecting allegations in an election contest that were "too general, uncertain, and indefinite").

Bergstrom contends that the allegations of her contest notice comply with the standards set by the Legislature: she alleged based on the specific "grounds" set out in her notice that irregularities occurred in the conduct of the election, or there were deliberate, serious, and material violations of election laws, or there was a question as to who received the highest number of votes legally cast in the election.

McEwen argues that the district court correctly concluded that Bergstrom's allegations of alleged irregularities and violations of election law failed to state a claim on which relief can be granted, because those allegations are mere speculation, unsupported by facts or evidence. McEwen asserts that none of the allegations support a claim that Bergstrom is entitled to a decree that she won the election.

The right to contest the results of an election is "purely statutory." Phillips v. Ericson , 248 Minn. 452, 80 N.W.2d 513, 517 (1957). In Christenson v. Allen , when considering the sufficiency of allegations contesting an election with a difference of 66 votes between the candidates, we said that merely surmising errors may have occurred in counting votes was not a "short and plain statement." 264 Minn. 395, 119 N.W.2d 35, 38–39 (1963). Instead, in addition to alleging irregularities in the conduct of the election or a violation of election laws, there must be a "plain statement showing that the contestant is entitled to a decree changing the declared result of the election." Id. at 40–41. The pleading standard we articulated in Christenson has been the law for election contests for over 150 years. See, e.g. , Hahn v. Graham , 302 Minn. 407, 225 N.W.2d 385, 386 (1975) (explaining "the rule in this state for well over 100 years," which requires that an alleged irregularity in an election "affected the outcome or was the product of fraud or bad faith");

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Janeway v. City of Duluth , 65 Minn. 292, 68 N.W. 24, 25 (1896) (noting that the allegations of irregularities in the election framed in "the most general terms" had "not alleged in what manner" those irregularities "affected the result").

The allegations of Bergstrom's election contest do not satisfy this pleading standard for several reasons.

First, nothing in Bergstrom's notice alleges that any of the listed irregularities or errors affected the outcome of the election for Senate District 7, nor does she allege that if any of the claims asserted in her election contest succeeds, she would have been elected rather than McEwen. Hahn , 225 N.W.2d at 386 (stating that "the rule in this state" has been "that violation of a statute regulating the conduct of an election is not fatal to the election in the absence of proof that the irregularity affected the outcome").

Second, the allegations in Bergstrom's election contest—regarding party affiliation of appointed election judges, "concerns" about the "process" for absentee voting at some facilities, questions regarding the canvassing board's summary statements, and the possibility of fraud given "credible reports" of "anomalies" in the

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software used in voting machines—are simply too vague to warrant embarking upon the discovery and trial process she seeks. We have rejected vague and general allegations that essentially challenge the validity of an election. See, e.g. , Hancock, 122 N.W.2d at 595 (explaining that an election contest that "sought to defeat" the outcome "by declaring the whole election invalid" is insufficient to warrant granting relief); Soper , 48 N.W. at 1112 (stating that "the entire vote of the township" would not be disenfranchised because of an alleged irregularity in the conduct of the election "which it is not claimed changed the result of the election"); Hahn , 225 N.W.2d at 386 (noting the absence of allegations that the brother of a candidate, appointed to serve as voter registration deputy, "at any time tampered with ballots or in any way acted to influence" voters); Janeway , 68 N.W. at 25–26 (stating that allegations, including those regarding the political affiliation of election judges, made "in the most general terms" were insufficient to set aside the election). We have also rejected election contests based on allegations of conduct that do not violate the law, such as Bergstrom's allegation that she was not allowed to make a public statement before the canvassing boards. See Soper , 48 N.W. at 1112 (rejecting an allegation based on public access to the ballot box during voting because the law did not require "that during the casting of ballots the box shall be kept" in public view).

Third, the public record of canvassed and certified vote counts is prima facie evidence of the results of this election. Berg v. Veit , 136 Minn. 443, 162 N.W. 522, 522 (1917) ; Moon v. Harris , 122 Minn. 138, 142 N.W. 12, 13 (1913) ("The official returns are evidence of the votes cast" and are presumed to "correctly state the result of an accurate count of the ballots"); Taylor v. Taylor , 10 Minn. 107, 112 (1865) (stating that the certified results of an election are " prima facie evidence of the facts therein stated"). The votes cast in some precincts in Senate District 7 were also subject to a post-election review, see Minn. Stat. § 206.89, subd. 2, and the votes cast in precinct 8 were recounted at Bergstrom's request, see Minn. Stat. § 204C.35, subd. 2 (2020). As a result, multiple steps were taken to verify the accuracy of the votes in Senate District 7 before Bergstrom filed her election contest. The vague sense, as the district court said, that something was not right with the election does not disturb the prima facie evidence of the results of this contest. See Walsh , 851 N.W.2d at 603 (noting that we require more than legal conclusions in a complaint); Hancock , 122 N.W.2d at 595 (rejecting allegations in an election contest that sought to "declar[e] the whole election invalid").

Finally, we note that Bergstrom asserts that the procedures authorized by chapter 209—an inspection of ballots and discovery—must be allowed when an election is contested. We disagree. The question presented by this appeal—whether the allegations of Bergstrom's notice state a claim upon which relief could be granted—must be answered before moving forward with other procedures in chapter 209. We have rejected the argument that chapter 209 confers an "absolute right" to a ballot inspection. In re Contest of Gen. Election Held on Nov. 4, 2008 , 767 N.W.2d at 469–70 (rejecting contestant's claim of an absolute right to inspect ballots, stating that an inspection is allowed only upon a showing that it is needed to prepare for trial). And nothing in the ballot inspection statute authorizes the disclosure Bergstrom requested, of "voter rolls or other election materials."

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Id. at 469 ; see Minn. Stat. §§ 209.05 –.06 (describing procedures for guarding and inspecting "ballots").

Bergstrom argues that transparency and public confidence in the integrity of the election requires the inspection and discovery she seeks. This concern, even if it is one that can be addressed in an election contest, must be supported by allegations that are sufficient to state a claim upon which the relief provided by chapter 209 can be granted. Given the expectation for an expeditious resolution of an election contest, see Minn. Stat. § 209.10, subd. 3 (requiring proceedings to be held within 15 days), we will not lightly disturb the canvassed, certified, and recounted results of a fair election in the absence of allegations that comply with the well-established pleading standard for election contests. This is because once ascertained, "the most important consideration" is to give effect to "the will of the voters." Holmen v. Miller , 296 Minn. 99, 206 N.W.2d 916, 922 (1973). We are confident that the will of the voters in Senate District 7 is accurately reflected in the result that has been upheld through multiple reviews of the ballots cast in that election.

CONCLUSION

For the foregoing reasons, the decision of the district court is affirmed.

Affirmed.

CHUTICH and MOORE III, JJ., took no part in the consideration or decision of this matter.