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UNITED STATES DISTRICT COURTDISTRICT OF MINNESOTA

Civil File No. 12-CV-00519 DWF/LIB

___________________________________________________________________

Minnesota Voters Alliance, Minnesota Freedom Council,Sondra Erickson, Montgomery Jensen, Ron Kaus, Jodi Lyn Nelson,

Sharon Stene, as the guardian and friend for James Stene,Richard M. Smisson, and Kathleen M. Olson,

Plaintiffs,

vs.

Mark Ritchie, individually and in his official capacity as Secretary of State for the State ofMinnesota, and his successors; Lori Swanson, individually and in her official capacity as theMinnesota Attorney General, and her successors; Joe Mansky, individually and in his officialcapacity as the Elections Manager for Ramsey County, Minnesota, and his successors; JohnJ. Choi, individually and in his official capacity as the County Attorney for Ramsey County,Minnesota, and his successors; Laureen E. Borden, individually and in her official capacity asthe Auditor-Treasurer for Crow Wing County, Minnesota, and her successors; and Donald

F. Ryan, individually and in his official capacity as County Attorney for Crow Wing,Minnesota, and his successors; Dennis J. Freed, individually and in his official capacity as theAuditor for Chisago County, Minnesota, and his successors; and Janet Reiter, individually

and in her official capacity as County Attorney for Chisago County, Minnesota and her

successors,

Defendants.

FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF

and

DEMAND FOR JURY TRIAL

_______________________________________________________________________

The above-named Plaintiffs for their Amended Complaint allege as follows:

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INTRODUCTION

1. This Complaint is based on voters associational and voting rights. Voters have theright to associate with other voters and candidates for the advancement of political

beliefs. Qualified voters, regardless of their political persuasion, also have the right to

cast their votes effectively.

2. The Defendants, on the election days in November 2008 and 2010, waived thequalifications found under Article VII, section 1 of the Minnesota Constitution for

election day registrants by not confirming that each person is entitled to vote. The

State directs the counties to confirm the entitlement of each election day registrant

after the election. In 2008 and 2010, thousands of persons were unconfirmed as

entitled to vote but their votes were counted on those election days. Thus, persons

entitled to vote had their ballots counted with persons not entitled to vote violating

Minn. Const. art. VII, 1 and the constitutional protections of due process, equal

protection, and association (including all unenumerated rights). State laws are also

implicated as constitutionally infirm. The Defendants will waive the requirements of

Article VII, 1 again on election day in November 2012. The implications are

profound.

3. The Defendants cannot arbitrarily waive the entitlement requirements of Article VII, 1 with impunity on election day. Thus, the Plaintiffs seek injunctive relief requiring

the State and counties to confirm the entitlement to vote of each election day

registrant before permitting their ballot to count in the November 2012 election, and

any election thereafter. Under the present system, with election day results counting

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non-entitled persons ballots with and mixed with entitled voters ballots, the State

cannot ensure that the winner of each election is the choice of the majority or even a

strong plurality of entitled voters.

JURISDICTION

4. The jurisdiction of this Court is found under 28 US.C. 1331 (federal question)1343, (1)-(4), the First Amendment, the Fifth Amendment, the Ninth Amendment,

and the Fourteenth Amendment of the United States Constitution.

5. This Court is authorized to grant declaratory and injunctive relief under 28 U.S.C. 2201 and 2202, Federal Rules of Civil Procedure 57 and 65, and has general legal and

equitable powers.

6. Venue is proper in this Court under 28 U.S.C. 1391. Plaintiffs further invoke thependent jurisdiction of this Court to consider claims arising under state law.

PARTIES

A. Plaintiffs7. Plaintiff Sondra Erickson is presently an elected official with the Minnesota State

House of Representatives. In 2008, she ran for an elected office for a seat in the State

House of Representatives. She lost during that presidential election year by 89 votes

in a re-count. In the 2010 election she won her seat in the State House of

Representatives. Erickson is a registered and eligible voter within her district and

intends to be a candidate in the 2012 general election.

8. Plaintiff Montgomery Jensen is a United States citizen and resident of Crow WingCounty Minnesota. He is a registered voter and is a person eligible and has been

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permitted to vote under the provisions of the Minnesota Constitution. He voted in

the 2008 and 2010 elections. He intends to run for an elected office as a candidate in

the 2012 general elections.

9. Plaintiff Sharon Stene is a United States citizen, residing in Merrifield, Minnesota, andthe legal guardian of her son James Stene. James Stene was a resident of Clark Lake

Homes in Brainerd, Minnesota. Although James Stene has not had his right to vote

withheld from him by court order, because he is incapacitated, Sharon Stene seriously

suspects James Stene cannot make a personal decision knowing the nature or effect

of his vote in choosing a candidate for office.

10. Plaintiff Minnesota Voters Alliance is an association of members concerned withissues relating to election processes and election integrity issues. It was a named

Plaintiff, for instance, in challenging the Instant Runoff Voting regulations governing

Minneapoliss City election process before the State Supreme Court and continues as

a challenger to that type of voting system. The Association has further voiced

concerns to local, county, state, and other officials, both appointed, employed, or

elected, about issues related to the election process inclusive of protecting the right to

vote. The Association is also concerned about the protections to the right to vote for

all people. Members include Minnesota voters who voted in Minnesota elections in

2008 or 2010 or both. Members also include those who voted for Coleman for U.S.

Senate in 2008 and for Thomas Emmer for Minnesota Governor in 2010. The

Minnesota Voters Alliance also encourages passage of legislation related to the

election process.

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11. Plaintiff Minnesota Freedom Council is an association of members concerned withissues relating to election processes and election integrity issues. The Association has

voiced its concern with local, county, state, and other elected, appointed, or employed

officials regarding issues related to the election process inclusive of protecting the

right to vote, and encouraging the investigation of complaints relating to lawlessness

within the election or registration process and prosecution of wrong-doers if found.

The Council also encourages the passage of legislation related to election processes.

12. Plaintiff Ron Kaus is a United States citizen and was a resident of Crow WingCounty Minnesota prior to 2012. He is a registered voter and is a person eligible and

has been permitted to vote under the provisions of the Minnesota Constitution. He is

presently a resident of Duluth, Minnesota.

13. Plaintiff Jodi Lyn Nelson is a resident of Maplewood, Minnesota. In 2001 she ran fora school board elected office and lost by one vote. She is a registered voter, eligible to

vote and intends to run for elected office in the November 2012 general elections.

14. Plaintiff Richard M. Smisson is a resident of Harris, Minnesota. Smisson served asHarriss Mayor from 2005-2008, and from time to time also served as an election

judge. He is a registered voter, eligible to vote and intends to vote in the future.

15. Plaintiff Kathleen M. Olson is a resident of Harris, Minnesota. Olson served on theHarris City Council as an elected official. She was on the ballot for re-election as a

Council member in 2006. Olson has also served since 2002 as an election judge. She

is a registered voter, eligible to vote and intends to vote in the future.

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B. Defendants.16. Defendant Joe Mansky is the Elections Manager for Ramsey County, Minnesota.

Mansky is individually and through his office responsible for the conduct of elections

in Ramsey County such as the enforcement of constitutional prohibitions on persons

not entitled to or permitted to vote. Likewise, he is responsible for protecting the

constitutional rights of people entitled to or permitted to vote

17. Defendant John J. Choi is the Ramsey County Attorney. He is individually andthrough his office responsible, among things, for protecting constitutional rights of

the people, including the right of people entitled to and permitted to vote.

18. Defendant Laureen E. Borden is the Auditor-Treasurer for Crow Wing County,Minnesota. Borden is responsible for the election administration in the County.

Borden is responsible for the conduct of elections in Crow Wing County such as the

enforcement of constitutional prohibitions on persons not entitled to or permitted to

vote. Likewise, she is responsible for the constitutional enforcement and protection

of the fundamental right to vote of people who are entitled and permitted to vote.

19. Defendant Donald F. Ryan is the Crow Wing County Attorney. He is individuallyand through his office responsible, among other things, for protecting constitutional

rights of the people, including the right of people entitled to and permitted to vote.

20.

Defendant Mark Ritchie is the Minnesota Secretary of State. The Secretary of State is

a constitutional official. As Secretary of State, Ritchie is the statewide election officer

responsible for the policies relating to the conduct of elections within the State.

Ritchie is responsible for the protecting the fundamental right of people entitled to

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and permitted to vote. He also directly communicates with County Election

Managers, or their equivalent officials, on election matters inclusive of the conduct

within polling places as it relates to election judges or other poll workers. The

Secretary of State is the source of authority for the counties regarding when to

confirm election registrants and a registrants entitlement to vote.

21. Defendant Lori Swanson is the Minnesota Attorney General. The Attorney Generalis a constitutional official. Swanson is responsible, among other things, for the

protecting constitutional rights of the people, including the right of people entitled to

and permitted to vote.

22. Defendant Janet Reiter is the Auditor for Chisago County, Minnesota. Reiter isresponsible for the election administration in the County. Reiter is responsible for the

conduct of elections in Chisago County such as the enforcement of constitutional

prohibitions on persons not entitled to or permitted to vote. Likewise, she is

responsible for the constitutional enforcement and protection of the fundamental

right to vote of people who are entitled and permitted to vote.

23. Defendant Dennis J. Freed is the Chisago County Attorney. He is individually andthrough his office responsible for, among other things, protecting constitutional

rights of the people, including the right of people entitled to and permitted to vote.

C.The Minnesota Constitution defines who is not eligible to vote.

24. Article VII, 1 of the Minnesota Constitution states:Every person 18 years of age or more who has been a citizen of the UnitedStates for three months and who has resided in the precinct for 30 days nextpreceding an election shall be entitled to vote in that precinct. The place of

voting by one otherwise qualified who has changed his residence within 30

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days preceding the election shall be prescribed by law. The following personsshall not be entitled or permitted to vote at any election in this state: A personnot meeting the above requirements; a person who has been convicted oftreason or felony, unless restored to civil rights; a person under guardianship,or a person who is insane or not mentally competent.

25. Under the Minnesota Constitution and U.S. Constitution, the right to vote is afundamental right; a vote involves casting a ballot and having it counted.

26. Minnesota Constitution Article VII, 1 describes who is entitled or permitted tovote. For instance, a person convicted of a felony, and who has not regained his right

to vote, is not entitled or permitted to vote at any election in Minnesota. According

to Article VII, 1, a person under guardianship or is not mentally competent is not

entitled to vote. A person otherwise qualified who has resided in a particular precinct

for 30 days preceding an election is entitled to vote in that precinct at any election in

Minnesota.

27. Minnesota laws governing procedures pertaining to guardianships are found underMinn. Stat. 524.5-301, et. seq.

28. Minnesota laws governing a persons eligibility to vote are found under Minn. ch.201.

29. Minnesota laws governing absentee ballots are found under Minn. Stat. 203B.001,et seq.

D.Elections in Minnesota have resulted in close contests.

30. Minnesota has a history of close elections. In the 1916 election, the Minnesotapopular vote in a presidential race had Charles Evans Hughes defeating Woodrow

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Wilson by 392 votes. In 1962, Karl F. Rovaag defeated Elmer L. Anderson for

Governor of Minnesota by 91 votes.

31. Minnesota State Senate by 25 votes. The State reported 7,940 EDRs in that race, allof which were unconfirmed on election day when their ballots were counted. For

each of the 25 votes counted as the margin of victory there were 318 unconfirmed

EDRs.

32. In the 2001 election, Mark Wheeler defeated Jodi Pulkrabek-Nelson (Plaintiff JodiLyn Nelson) for a school board seat in School District No. 622 by 1 vote. Although

no public information is available regarding the number of EDRs in School District

No. 622, upon information and belief, to the extent EDRs existed, each ballot cast

was counted as a vote on that election day. Upon information and belief, to the

extent EDRs existed, they were not confirmed on election day as persons entitled to

vote.

33. In the 2002 election, Dan Sparks defeated Grace Stabell Schwab by 7 votes for a seatin the Minnesota State Senate. The State reported 3,682 EDRs in that race, all of

which were unconfirmed on election day when their ballots were counted. For each

of the 7 votes counted as the margin of victory there were 526 unconfirmed EDRs.

34. In the 2008 election, Al Franken defeated Norm Coleman for a seat in the U.S.Senate by 312 votes. The State reported 542,257 EDRs all of which were

unconfirmed on election day when their ballots were counted. For each of the 312

votes counted as the margin of victory there were 1,738 unconfirmed EDRs. After

the election, the State and counties attempted to confirm all reported EDRs. Public

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records reveal that as a result of the post-election confirmation process, the State and

counties were unable to confirm 48,545 EDRs or 155 EDRs for each of the 312

votes counted as the margin of victory.

35. In the 2008 election, Gail Kulick Jackson defeated the Plaintiff Sondra Erickson for aseat in the State House of Representatives by 89 votes. The State reported 4,044

EDRs in that race, all of which were unconfirmed on election day when their ballots

were counted. For each of the 89 votes counted as the margin of victory, there were

45 unconfirmed EDRs. After the election, the State and counties attempted to

confirm all reported EDRs. Public records reveal that as a result of the post-election

confirmation process, the State and counties were unable to confirm 242 EDRs or

approximately 2.7 EDRs for each of the 89 votes counted as the margin of victory.

36. In the 2010 election, King Banaian defeated Carol Lewis for a seat in the State Houseof Representatives by 13 votes. The State reported 2,447 EDRs in that race, all of

which were unconfirmed on election day when their ballots were counted. For each

of the 13 votes counted as the margin of victory, there were 188 unconfirmed EDRs.

After the election, the State and counties attempted to confirm all reported EDRs.

Public records reveal that as a result of the post-election confirmation process, the

State and counties were unable to confirm 35 EDRs or 2.7 EDRs for each of the 13

votes counted as the margin of victory.

37. In the 2010 election, Kelby Woodard defeated David Bly for a seat in the StateHouse of Representatives by 37 votes. The State reported 2,773 EDRs in that race, all

of which were unconfirmed on election day when their ballots were counted. For

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each of the 37 votes counted as the margin of victory there were 75 unconfirmed

EDRs. After the election, the State and the counties attempted to confirm all

reported EDRs and was not able to do so. Public records reveal that as a result of the

post-election confirmation process, the State and counties were unable to confirm 76

EDRs or 2.0 EDRs for each of the 37 votes counted as the margin of victory.

38. Since 2000 other elections have had results similar to those described above in whichthe number of EDRs per winning vote ranged from 21 to 542. There will be future

statewide, county, and local close election contests. There is a presidential and general

election contest scheduled for November 2012.

E. In both the 2008 and the 2010 election, thousands of persons registered tovote on election day, and thousands of voters were unconfirmable after theelection.

1. The November 2008 presidential election contest.39. In the November 2008 election contest, a presidential election, there were a total of

2,921,498 votes counted statewide. In Minnesota, there were 542,257 election day

registrants statewide who cast ballots and had their votes counted on that same

election day.

40. The State or counties did not confirm on election day whether any of the 542,257EDRs were entitled to vote as expressed under Minn. Const. art. VII, 1.

41.

Public records reveal that after the November 2008 election there were 48,545 EDRs

found to be unconfirmable; nevertheless each had their vote counted for that election

contest. Each EDR who was found to be unconfirmable as entitled to vote after the

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election, upon information and belief, was also not entitled to vote on the preceding

election day for that November 2008 contest.

42. After the election day in November 2008, there were a potential total of 48,545voters that the state or counties could not confirm were entitled to vote on that

election day but, nevertheless, were permitted to have their votes counted in that

November 2008 election.

2. The November 2010 non-presidential election contest43. In the November 2010 election contest, a non-presidential election, there were

1,996,074 votes counted statewide. In Minnesota, there were 227,857 election day

registrants statewide who cast ballots and had their votes counted on that same

election day.

44. The State and the counties did not confirm on election day whether any of the227,857 EDRs were entitled to vote as expressed under Minn. Const. art. VII, 1.

45. Public records reveal that after the November 2010 election there were 7,691 EDRsfound to be unconfirmable. They nevertheless had their votes counted for that

election contest. Each EDR who was found to be unconfirmed as entitled to vote

after the election, upon information and belief, was not entitled to vote on the

preceding election day for that November 2010 contest.

46.

In the November 2010 election contest in Crow Wing County, there were 27,658

votes counted. Public records reveal that on that election day there were 2,580 EDRs

who had their votes counted. After the election, it was found that 72 EDRs were

unconfirmable. Each EDR who was found to be unconfirmed as entitled to vote

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after the election, upon information and belief, was not entitled to vote on the

preceding election day for that November 2010 contest.

47. In the November 2010 election contest in Ramsey County, there were 192,955 votescounted. Public records reveal that on that election day there were 25,135 EDRS who

had their votes counted. After the election it was found that 1,133 EDRs were

unconfirmable. At least 268 persons who voted in Ramsey County were challenged

after the election. Each EDR who was found unconfirmed as entitled to vote after

the election, upon information and belief, was not entitled to vote on the preceding

election day for that November 2010 contest.

F. Crow Wing County and Ramsey County allowed ineligible persons to castballots and counted those ballots as votes.

48. In November 2010, Minnesota had an election for local, state, and federal candidates.49. Crow Wing County knew or should have known that wards, or persons under

guardianship, resided within the boundaries of the County. Court orders relating to

guardianships are public records.

50. The court order appointing a guardian for Crieg Joseph Ruesken, making Ruesken award, states that he is incapable of exercising the right and power to vote. The order

is attached as Exhibit A.

51. Crieg Joseph Ruesken was a resident of Clark Lake Homes. On October 29, 2010,Clark Lake Homes personnel or others associated with Clark Lake assisted Crieg

Joseph Rusken in bringing him to the Auditors Office before Crow Wing County

officials. He registered to vote. His registration form is attached as Exhibit B.

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52. Despite the court order that suspended Crieg Joseph Rueskens right to vote, CrowWing County officials nevertheless allowed him to cast a ballot and then counted his

ballot as a vote in the Minnesota November 2010 election.

53. James Alan Stene is a ward, a person under guardianship. The governing court orderis attached as Exhibit C. James Alan Stene was a resident of Clark Lake Homes.

54. Crow Wing County knew or should have known Stene is a ward and a person under aguardianship order. James Stenes guardian is Plaintiff Sharon Stene.

55. On October 29, 2010, Clark Lake Homes personnel or others associated with ClarkLake assisted and brought Stene to the Auditors Office of the Crow Wing County

courthouse where he, with the assistance of others, registered to vote. Stenes parents

(Al Stene, alive during these events has since died.), as his guardians, were not aware

that someone had brought their son to a facility to register James Stene to vote. His

registration is attached as Exhibit D.

56. Crow Wing County officials allowed James Alan Stene to register to vote on October29, 2010. Stene had not registered to vote before that day. Crow Wing County

officials allowed Stene to cast a ballot and later counted his ballot as a vote in the

Minnesota November 2010 election.

57. Stenes parents were concerned about his cognitive ability to competently cast a ballotdespite James Stenes guardianship order that maintained his right to vote. They had

believed James did not know the nature or the effect of voting. See

http://www.foxnews.com/politics/2011/04/05/family-mentally-handicapped-man-

says-victim-voter-fraud/. Furthermore, as guardians, they did not know of the Clark

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Homes assistance to bring James to the Auditors Office, they did not have a chance

to challenge his vote.

58. Clark Lake Homes knew or should have known that certain residents in its facility areunder court-ordered guardianship. Clark Lake Homes, its agents or representatives,

did not inform the guardians that the wards would be registered to vote and that

Clark Lake Homes agents or representatives would have the wards cast ballots.

59. There are other persons under guardianship similarly situated who registered to voteand had their votes counted.

60. The County Attorney knew that Crow Wing County officials are not allowed toregister persons under guardianship who have lost their right to vote under a court

order. Thus, the County Attorney has failed or refuses to stop County officials or

others from registering and allowing persons under guardianship orders restricting

their right to vote from voting in Minnesota elections. Upon information and belief,

wards with suspended rights to vote remain on the States active voter rolls.

61. The Secretary of State is responsible for statewide election policies and theimplementation of governing state election laws. As a result, the Secretary has

instructed City Clerks and Township Clerks, and others with similar responsibilities,

through election guides, to have voter registration applications, known as VRAs,

completed on election day to be forwarded to their respective county auditor within

48 hours after the end of voting.

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62. . The Secretary of State requires the County Auditor or other County official,similarly authorized, to verify the VRAs after the election to confirm if the person is

entitled to vote.

63. The Secretary of State knew or should have known that Crow Wing County officialsallowed persons, under guardianship with restrictions, to register and to have their

votes counted in November 2010.

64. The Secretary of State knew the Minnesota Constitution states that a person underguardianship is not entitled or permitted to vote.

65. James V. Bond was a convicted felon. On election day in November 2008, he hadnot regained his eligibility to vote. Exhibit E is the public record reflecting his status

as a felon.

66. Bond was a felon on election day in November 2008. Ramsey County officialsallowed Bond to register to vote. Exhibit F is his registration form.

67. Bond cast a ballot on election day in November 2008. Ramsey County officialscounted his ballot. Bond voted in November 2008 and Ramsey County knew that

Bond was a felon that election day. Exhibit G is a page of the voter registration roster

indicating he received a ballot.

68. Marcellette C. Payne was a convicted felon. On election day in November 2008, shehad not regained her eligibility to vote. Exhibit H shows the public record reflecting

her status as a felon. Ramsey County officials allowed Payne to register to vote.

Exhibit I shows her registration form.

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69. Payne cast a ballot on election day in November 2008. Ramsey County officialscounted her ballot. Exhibit J is a page of the voter registration roster indicating she

received a ballot.

70. There are other felons who were allowed to register and had their votes counted.71. Upon information and belief, the Ramsey County Attorney knew the Minnesota

Constitution states that a person who is a felon, and whose voting rights have not

been restored, is not entitled or permitted to vote. After the 2008 election, the

County Attorney knew that Ramsey County officials allowed felons to vote. Yet, the

County Attorney fails or refuses to stop Ramsey County officials or others from

allowing persons who are felons to register and to vote in Minnesota elections.

72. The Secretary of State knew the Minnesota Constitution states that a person who is afelon, and who has not had their right to vote restored, is not entitled or permitted to

vote. Upon information and belief, the Secretary of State knew that Ramsey County

officials allowed persons who were felons to register to vote, cast ballots, and

subsequently counted those ballots as votes in Minnesota elections.

G.Ineligible persons had their ballots counted and persons knowing of theactions had no way to prevent or immediately challenge the personsregistrations to stop the unconstitutional act.

73. In 2006, Richard M. Smisson ran for reelection as Mayor for Harris, Minnesotalocated in Chisago County. Upon information and belief, a total of approximately 700

ballots were counted on that election day. Smission won that election by

approximately 12 votes.

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74. In 2006, Kathleen M. Olson ran for reelection as a Harris, Minnesota City Councilmember in Chisago County.

75. On election day, several individuals, upon information and believe, up to 10 persons,entered the polling place at the Harris City Hall and registered to vote, completing the

necessary registration applications. The election judges became suspicious of the

eligibility of the election-day-registrants because of the address each had given a

laundromat located one block from the polling place. The address was known by the

election judges because of their life-long knowledge of Harris and the Citys relatively

small size.

76. Noting the residency address on the applications as a laundromat, the election judgescontacted the Chisago County Auditor about their findings and sought direction

about what could be done. The Auditor advised the election judges that they could

not prevent the applicants from casting ballots. The Auditor did state the only option

of the election judges was to take note and challenge those persons after the election,

presumably for subsequent elections. The individuals that concerned the election

judges did casts ballots and their votes were counted.

77. An election judge contacted Smisson about the events occurring at the polling place.Upon Smissons arrival, and in another room away from the polling place, he and

another election judge were able to determine that certain individuals who completed

registration applications actually lived in towns outside of Harris. Also present were

Plaintiff Kathleen M. Olson and City Clerk Jennifer Wolhe. Smisson contacted the

Chisago County Auditor on that election day and again voiced concern about the

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unfolding events. On a speaker phone, allowing all present to hear, including Olson,

the County Auditor told Smisson and those present, that those individuals of concern

had a right to vote that superceded his issue regarding their eligibility to vote.

Smisson and others present were further told by the County Auditor that any

immediate challenge could not occur until after the election.Upon information and

belief, the Chisago County Auditor did not report to the County Attorney the events

Smisson or the election judges complained about regarding the election day

registrants who used a Harris, Minnesota laundromat as a residency address, but lived

outside of Harris, who cast ballots and had their ballots counted.

78. Upon information and belief the Chisago County Attorney did not investigate orprosecute any of the individuals Smisson or the election judges brought to the

attention to the Chisago County Auditor regarding the election day registrants who

used a Harris, Minnesota laundromat as a residency address, but lived outside of

Harris, who cast ballots and had their ballots counted.

79. Neither Smisson, nor the election judges, nor any other person had any means toimmediately investigate or prevent the casting of the ballots or importantly the

counting of the ballots of the election day registrants who used a Harris, Minnesota

laundromat as a residency address, but lived outside of Harris, who cast ballots and

ultimately had their ballots counted.

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Count I

Violation of the right of association under the First Amendment of the U.S.Constitution and rights of equal protection under the Fourteenth Amendment of the

U.S. Constitution

80. The Plaintiffs adopt and incorporate by reference paragraphs 1 through 79 as if fullystated.

81. Under the U.S. Constitution, the First Amendment protects the right to vote and theright of association. The freedom of association is also protected under certain

circumstances by the Due Process Clause of the Fourteenth Amendment of the U.S.

Constitution. The Fourteenth Amendment protects the right of the equal protection

of the laws.

82. Under the Ninth Amendment of the U.S. Constitution, The enumeration in theConstitution of certain rights shall not be construed to deny or disparage others

retained by the people.

83. Minnesota Constitution, art. I, 16, states that The enumeration of rights in thisconstitution shall not deny or impair others retained by and inherent in the people.

84. When a person not entitled to vote is permitted to vote in an election, the person isillegally and illegitimately interfering with the right of association of others entitled to

vote who choose to vote in that same election.

85.

Each of the Plaintiffs is entitled to vote, or is an organization representing persons

entitled to vote, who in fact voted in the November 2008 or November 2010

elections.

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86. Under the Minnesota Constitutions art. VII, 1, the fundamental right to vote is notprovided to all people. The Minnesota Constitution specifically prohibits certain

people from exercising the right to vote. People who are not entitled or permitted to

vote include: (a) a person convicted of a felony unless his civil rights are restored; (b)

a person under guardianship; or (c) a person found to be mentally incompetent.

87. The initial part of determining a persons entitlement to vote under Article VII, 1 ofthe Minnesota Constitution is to register to vote. The application is reviewed to

determine if the person is entitled to vote.

88. The State of Minnesota and counties have an affirmative obligation under Article VIIto protect the rights of people entitled or permitted to vote. The State and counties

have an affirmative obligation to confirm a persons entitlement to vote before

permitting that persons ballot to be counted.

89. A person who registers on the same day as the election is allowed to complete aballot, and have his or her ballot counted without the State or county confirming the

eligibility of the person necessary for him or her to be entitled to vote.

90. The State and counties have impermissively permitted persons to vote on electionday who are not entitled to vote and therefore should not be permitted to vote on

election day, including felons who have not had their right to vote restored, persons

under guardianship who have had their right to vote suspended, and other persons

after the election identified as unconfirmed to an entitlement to vote under the Minn.

Const. art. VII, 1.

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91. When a person is not entitled to vote and is nevertheless permitted to vote, theperson adversely affects the right of association of the legitimately entitled voter who

has exercised their right to vote on that election day. The non-entitled voter has

illegally and illegitimately associated himself with a candidate.

92. When a person not entitled to vote is permitted to vote that person illegally interfereswith the association rights of each candidate in the election who have an inherent

interest in a fair election.

93. In close elections, the mix of unconstitutional votes with constitutional votesundermines the integrity or validity of the election. The effect is not slight

considering the number of close elections Minnesota has experienced. The present

system does not ensure that the winner of the election contest is the choice of the

majority or even a strong plurality of constitutional voters.

94. Indentifying the persons not constitutionally entitled to vote as challenged voters(or identified by any other label) in future elections nullifies the legitimacy of the

preceding election and is an affirmation by the State and the counties of the infirmity

of the preceding election and candidates elected to office.

95. The statutory requirements for election day registration and the States waiver ofMinn. Stat. Const. art. VII, 1 requirements of entitlement to vote on election day are

not reasonable and have a discriminatory effect on voters who are entitled to vote is

violative of the Equal Protection Clause of the U.S. Constitution.

96. As a result of the State and counties failures on election day to confirm theentitlement of every person who has registered on election day, the Plaintiffs

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constitutionally protected right of association under the First Amendment of the U.S.

Constitution is violated.

97. As a result of the unconstitutional acts of the State and counties, this Court shouldenter judgment that the acts of the State and counties are unconstitutional and

violative of law, and enter judgment against Defendants as violating the Plaintiffs

constitutional right to association and enjoin the State and the counties from

permitting the ballots of persons registered to vote on election day from being

counted until the State and counties confirm those persons entitlement to vote. This

Court should also enter any other order it deems just and equitable, including

attorney fees and costs.

Count II

Violation of Due Process Clause of the Fifth and Fourteenth Amendmentsof the U.S. Constitution

98. The Plaintiffs adopt and incorporate by reference paragraphs 1 through 97 as if fullystated.

99. The Due Process Clause protections restrain government actions which depriveindividuals of liberty interests. The Due Process proscriptions are found under the

Fifth and Fourteenth Amendments of the United States Constitution and Article I,

7 of the Minnesota Constitution.

100.The Ninth Amendment of the United States Constitution further proclaims that[t]he enumeration in the Constitution of certain rights shall not be construed to

deny or disparage others retained by the people.

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101.The Minnesota Constitution, art. I, 16, states that The enumeration of rights inthis constitution shall not deny or impair others retained by and inherent in the

people.

102.When a person not entitled to vote is permitted to vote under Article VII, 1 of theMinnesota Constitution, the State or the counties have violated the prohibitions of

the Fifth and Fourteenth Amendments of the U.S. Constitution..

103. Under the Minnesota Constitution, the State and counties have an affirmativeobligation on election day to ensure that every election day registrant is entitled to

vote before permitting that registrant to have his or her ballot counted.

104.When the government has the means and resources to prevent persons not entitledto vote, but instead permits them to register, complete ballots, and have their votes

counted on election day without providing candidates and voters an election day

process to challenge the illegal votes the government has violated the Due Process

Clauses of the United States and Minnesota Constitutions by permitting the

violations of the constitutionally protected associational liberty interests of entitled

voters who voted on election day without due process of law.

105. On election days in November 2008 and 2010, the State and counties allowedpersons to register and to complete ballots, and then permitted their ballots to be

counted without providing an election day process for these illegal votes to be

challenged. Only after the election did the State and counties confirm that numerous

individuals were not entitled to vote. Entitled voters on election day had no process

on election day to challenge those non-entitled voters from having their votes

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counted. Entitled voters on election day did not have the means or the resources to

challenge non-entitled voters. Only the State and counties knew or had the means to

know to prevent non-entitled persons votes from counting.

106.The failure of the State and the counties to meet their constitutionally mandatedobligations to entitled voters of prohibiting non-entitled voters from having their

ballots count undermined the integrity of the elections in November 2008 and

November 2010. The same will occur in November, 2012 on election day. The State

and counties failures further deprives Plaintiffs of their right of association and due

process protections. Post-election challenges or other identification of persons

unconfirmed regarding their respective entitlement to vote in future elections does

not negate the constitutional deprivations of the Plaintiffs and infirmities of the

preceding elections.

107.As a result of the unconstitutional acts of the State and counties, this Court shouldenter judgment against them as violating the Plaintiffs constitutional right to due

process and enjoin the State and the counties from permitting the ballot of any

person who registers to vote on election day from being counted until the State and

counties confirm that persons entitlement to vote. This Court should also enter any

other order it determines to be just and equitable, including attorney fees and costs.

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COUNT III

The waiver of Minnesota constitutional entitlement requirements on election dayviolates the First, Fifth, and Fourteenth Amendments of the U.S. Constitution.

108.The Plaintiffs adopt and incorporate by reference paragraphs 1 through 107 as if fullystated.

109. On election day in November 2008 and 2010, State and County officialsimpermissively and unconstitutionally waived the prohibitions of Article VII of the

Minnesota Constitution.

110.On election day in November 2012, State and county officials will impermissively and

unconstitutionally waive the prohibitions of Article VII of the Minnesota

Constitution.

111. Before counting the ballots of those persons who registered to vote on election day,Defendants failed to confirm each individual persons entitlement to vote. Thus, large

numbers of non-entitled persons, identified after the election contest, were not

entitled to vote in that election contest. Nevertheless, Defendants counted those non-

entitled persons ballots in contradiction to and in direct violation of the provisions

of the Minnesota Constitution, art. VII, 1.

112. Despite having the means to confirm the entitlement of every election day registrant,the State and county officials purposefully, individually or in concert with each other,

determined and decided not to follow the State constitutional mandates and

permitted non-entitled persons to vote and have their ballots counted.

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113. Permitting persons not entitled to vote to have their ballots counted are violations ofthe United States Constitution and Minnesota Constitution protections of the right of

association for the Plaintiff candidates.

114. Permitting persons not entitled to vote to have their ballots counted is a violation ofthe United States Constitution First Amendment and Minnesota Constitution

protections of association for the Plaintiffs entitled to vote.

115. Plaintiffs were denied the means to prevent the ballots of non-entitled persons frombeing counted on that election day violating the Plaintiffs right to due process.

116.The Minnesota Constitution, under Article VII, 1, permissively creates two classesof persons namely those who are entitled or permitted to vote and those who are

not entitled or permitted to vote. When the State counts the ballots of the non-

entitled class the same as it counts the ballots of the members of the entitled class,

the State is treating the latter unfairly by interfering with their right of association and

all other rights not otherwise enumerated. The acts of the State or the counties violate

the equal protection clause of the U.S. and Minnesota Constitutions.

117.This Court should enter judgment against the Defendants enjoining themindividually, or collectively, to prevent them from waiving the requirement for being

entitled to vote under Minn. Const. art. VII, 1, and requiring them to confirm the

eligibility of each election day registrant before counting his or her ballot for that

election. This Court should also enter any other order it deems just and equitable,

including attorney fees and costs.

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COUNT IV

Article VII, 1 of the Minnesota Constitution violates the Equal Protection and DueProcess Clauses of the U.S. and Minnesota Constitutions and Minn. Stat. 524.5-

301, et seq. violates the Due Process Clause of the U.S. Constitution.

118.The Plaintiffs adopt and incorporate by reference paragraphs 1 through 117 as if fullystated.

119.The wards right to vote is a constitutionally protected fundamental right, as alsostatutorily recognized under Minn. Stat. 524.5-120 the Bill of Rights for Wards

and Protected Persons which also provides that the court may restrict this

fundamental right.

120. Under Minnesotas constitution Art. VII, 1, persons under guardianship or thosenot mentally competent are not entitled to vote.

121. Minnesota enacted Minn. Stat. 524.5-313(c)(8) that states unless otherwise orderedby the court, the ward retains the right to vote. This State law variation of the

Minnesota Constitutions Article VII, 1, prohibition on the right to vote does not

afford potential wards the procedural process of notice and hearing specifically

tailored to protect the persons fundamental right to vote.

122. Under present procedures, restricting the right to vote depends more on theindividual judge hearing the case than on the ward or protected persons actual

capacity to understand the nature and effect of voting. There is nothing in the present

procedures that requires judges to consider the capacity to vote when a person is

facing the prospect of being disenfranchised as a result of the proceedings.

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123. Not all persons under guardianship lack the capacity to understand the nature andeffect of voting despite a finding of incapacity. Not all persons that have been

determined to lack capacity requiring guardianship lack understanding of the nature

of and effect of voting.

124. No specific notice is provided to the potential ward that elevates the potentialdisenfranchisement to the same level of notice as all other aspects regarding asserted

need for guardianship. The insufficiency of notice is displayed by evidence that some

under guardianship for lack of capacity or mental illness have voted.

125. Likewise, the insufficiency of notice is displayed by the evidence that some underguardianship for lack of capacity retain their right to vote but do not have the

capacity to understand the nature and effect of voting.

126.Article VII, 1 of the Minnesota Constitution specifically prohibiting persons underguardianship from voting is unconstitutional. This specific prohibition provision

violates the Equal Protection and Due Process Clauses of the U.S. Constitution and

the Minnesota Constitution.

127. Minnesota Stat. 524.5-301 et seq. is unconstitutional to the extent it fails to givespecific notice and a specific opportunity to be heard regarding the potential wards

fundamental right to vote.

128.As a result of the unconstitutional acts of the State and counties, this Court should

enter judgment finding that the plain language of Article VII, 1 of the Minnesota

Constitution prohibiting all persons under guardianship or mentally incompetent

from voting is unconstitutional; and that the procedural actions of the State and

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counties are unconstitutional. This Court should also enter any other order it deems

just and equitable, including attorney fees and costs.

RELIEF REQUESTED

WHEREFORE, the Plaintiffs respectfully request the following relief from the

Court:

(1) Enter declaratory judgment against the Defendants as violating the Plaintiffsconstitutional rights to association and to due process;

(2) Enter declaratory judgment against the Defendants that their waiver of therequirements of Minn. Const. art. VII, 1 against unconfirmed voters voting is

a violation of Plaintiffs constitutional rights;

(3) Enter declaratory judgment against Defendants holding that the plain languageof Article VII, 1 of the Minnesota Constitution prohibiting all persons under

guardianship from voting is unconstitutional;

(4) Enter declaratory judgment that the acts of Defendants are unconstitutionaland violative of law;

(5) Issue an injunction enjoining the Defendants from permitting the ballots ofpersons registered to vote on election day from being counted until the State

and counties confirm those persons entitlement to vote;

(6) Award reasonable attorneys fees, costs and any other available remedies under42 U.S.C. 1988, Minnesota Equal Access to Justice Act, or under any other

applicable law; and

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(7) Enter any other judgment or order which this Court would deem just andequitable.

DATED: March 13, 2012.

MOHRMAN & KAARDAL, P.A.

s/Erick G. KaardalErick G. Kaardal (#229647)33 South Sixth Street, Suite 4100Minneapolis, Minnesota 55402(612) 341-1074kaardal@mklaw.com

Attorneys For Plaintiffs

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