Minnesota attorney will attempt to block Mille Lacs County ruling barring defendants from voting

CATHY WURZER: An appeals court could rule as soon as today if a Black's County judge had the right to bar at least six defendants from voting as part of their sentences. Experts call it a highly unusual move for Judge Matthew Quinn to say that the legislature overstepped with its new law, allowing formerly incarcerated people to vote as soon as they step out of prison.

Judge Quinn wrote in his order that the law was unconstitutional. The state has asked an appellate court to move fast, with election day just two weeks away. I talked to the ACLU staff attorney David McKinney about this on Morning Edition this morning.

McKinney signed on to a legal petition from the state's public defender and Attorney General meant to block Judge Quinn's actions. I asked McKinney if the judge's reading of the Constitution is correct.

DAVID MCKINNEY: So it's not. And the Minnesota Supreme Court looked at the provision that Judge Quinn is looking at as well or looked at as well in his orders and concluded that the legislature has the discretion and the authority to restore rights like they did this summer.

They couldn't be clearer, in my view, in the decision that that was the legislature's prerogative, and they could do it however and whenever they wanted, and that's, of course, what they did this summer.

CATHY WURZER: How unusual is it for a judge to challenge state law in this manner?

DAVID MCKINNEY: Extremely unusual. I had said at one point I think it's just unprecedented. In all my years of practice, I've never seen a judge go this far off the guardrail. Typically, the parties challenge a law if they believe it to be unconstitutional.

There's plaintiffs and defendants vigorously defending and opposing the law. The judge hears briefing on the issue, oral arguments on the issue, and the judge then takes all that into consideration before deciding whether or not the Constitution or the statute that's being challenged is constitutional.

Here, Judge Quinn appears to have pulled this out of thin air. There was no challenge to the statute, no briefing, no parties arguing to the case. It was just presumably Judge Quinn in his chambers deciding on whether a statute was unconstitutional or not.

CATHY WURZER: Now, we know of six people affected. Are you aware of any others?

DAVID MCKINNEY: You know, that-- no, we're not aware of any others as of yet, but they appear to be coming in almost daily as the judge is considering people for sentencing. And this order that he seems to be issuing, it looks like a sort of a template ready-made order, so we don't have any reason to think that he's not going to continue to do this with folks who are coming before him who he deems unqualified to vote.

CATHY WURZER: So do you know-- are attorneys trying to reschedule sentencing hearings because they don't want their clients pulled into all this?

DAVID MCKINNEY: That's an interesting and good observation. I don't know if that's the case. I haven't talked to any of the attorneys in Mille Lacs County. If I were them, I might consider it. I don't know what ability they have to do that, though.

CATHY WURZER: As you know, Secretary Simon said on Friday that these orders apply only to individual cases. They have no statewide or even countywide reach. But I'm wondering if other judges agree with Judge Quinn's reading of the state law. I mean, could they follow suit?

DAVID MCKINNEY: Yeah, we're highly concerned about that, Cathy, that this is what appears to be a rogue judge who might inspire a widespread judicial activism. Now, quite frankly, my experience with the Minnesota courts is that most judges follow and apply the law.

We certainly respect that, and we respect the process in which parties vigorously debate and the judges decide on the issues presented before them. So I would hope-- I mean, I have great hope that won't be the case, but that's certainly a concern.

CATHY WURZER: You have signed on to something called a writ of prohibition that the state public defender filed late last week. What does that do?

DAVID MCKINNEY: Yeah, so the writ is a sort of extraordinary mechanism that parties can bring to the higher appellate courts overseeing a case like this one. Remember, Judge Quinn's in the lower district court. And the writ asked the Court of Appeals to move expeditiously to review the judge's ruling, and in this case, to overrule it and to prohibit Judge Quinn from issuing these orders and prohibiting folks from voting when the law empowers them to do so.

The public defender has submitted the brief in the Court of Appeals. The Secretary of State and Attorney General have signed on to that, and we submitted a brief supporting the public defender's position on the issue, asking that the court move expeditiously to enforce the law.

CATHY WURZER: Because the election's coming up fast, how quickly do you think this could be settled?

DAVID MCKINNEY: We hope as soon as possible. I mean, the writs, the courts usually act pretty quickly on it, sometime within a week or less. You hit the nail on the head in saying that folks are already voting, quite frankly, Cathy, and the election day is quickly upon us.

There's a legal doctrine that, in fact, applies to the courts that says the court shouldn't change election law in the time that we're in at this point. So beyond going against the Minnesota Constitution, this judge order cuts against the legal doctrine that the US Supreme Court has adopted in not disturbing elections when we're this-- when we're actually in election time.

CATHY WURZER: David, I have to run. Thank you for your time today.

DAVID MCKINNEY: Yes, Cathy. Thank you so much for having me.

CATHY WURZER: ACLU staff attorney, David McKinney. You can find updates on this and other stories on our website, mprnews.org.