20101112STLOUISCOUNTY

2996199vl
Briggs and Morgan, Professional Association Minneapolis I St. Paul I www.briggs.com Member - Lex Mundi, a Global Association of Independent Law Firms

BRIGGS

N

MORGAN

2200 IDS Center

80 South 8th Street Minneapolis MN 55402-2157 tel 612.977.8400

fax 612.977.8650

BRIGGS

November 12, 2010

Eric J. Magnuson (612) 977-8788 emagnuson@briggs.com

Court Administrator

St. Louis County District Court Civil Court Filings

100 North 5th Ave. W. Duluth, MN 55802

VIA FACSIMILE

Re: Emmer for Governor v. St. Louis County, Donald Dicklich, and Gary Eckenberg.

Dear Court Administrator:

I enclose for filing in the above-referenced matter the following:

1. Summons and Complaint;

2. Certificate of Representation and Parties;

3. Notice of Motion and Motion for Injunctive Relief;

4. Memorandum in Support of Motion for Injunctive Relief;

5. Affidavit of Matthew W. Haapoja; and

6. Proposed Order.

We have asked the County Attorney to accept service on behalf of the County and Mr. Dicklich and Mr. Eckenberg but as of the date of this filing, have not received a commitment to do that. If we need to effect personal service, we will do so and file affidavits of service as appropriate. We have provided the County Attorney with copies of all of these pleadings as well as this letter. Checks totaling $445 ($320 for the filing fee, $100 motion filing fee and $25.00 for the fax filing fee) will be provided under separate cover.

Sincerely,

CZ~CS

Eric J. Magnuson

CASE TYPE: CIVIL OTHER

STATE OF MINNESOTA COUNTY OF ST. LOUIS

DISTRICT COURT

SIXTH JUDICIAL DISTRICT

Emmer for Governor,

Case No.

-------

Plaintiff,

vs.

SUMMONS

St. Louis County, Donald Dicklich, and Gary Eckenberg.

Defendants.

THE STATE OF MINNESOTA TO THE ABOVE-NAMED DEFENDANTS:

You are hereby summoned and required to serve upon Plaintiff s attorney an Answer to

the Complaint which is herewith served upon you within twenty (20) days after the service of

this Summon upon you, exclusive of the day of service. If you fail to do so, judgment by default

will be taken against you for the relief demanded in the Complaint.

Civil cases are generally subject to alternative dispute processes pursuant to Minnesota

law. Alternative dispute resolution includes mediation, arbitration, and other processes as set

forth in the district court rules. You may contact the court administrator about resources relative

to the same.

Dated: November 12,2010

BRIGGS AND MORGAN, P.A.

Eric J. Magnuson, N 00 12

Neal T. Buethe, No. 16

Michael C. Wilhelm, No. 387655 2200 IDS Center

80 South Eighth Street Minneapolis, Minnesota 55402 612-977-8400

2993764v2

TRIMBLE & ASSOCIATES, LTD.

Tony P. Trimble, No. 122555 Matthew W. Haapoja, No. 268033 Suite 130

10201 Wayzata Boulevard Minneapolis, MN 55305 952-797-7477

Attorneys for Plaintiff

2993764v2


DISTRICT COURT SIXTH JUDICIAL DISTRICT

FORM 104 CERTIFICATE OF REPRESENTATION AND PARTIES

CASE NO. _

CERTIFICATE OF REPRESENTATION AND PARTIES

**(ONLY THE INITIAL FILING LAWYERIPARTY NEEDS TO COMPLETE THIS FORM)**

Date Case Filed: _

EMMER FOR GOVERNOR vs. ST. LOUIS COUNTY, DONALD DICKLICH, AND GARY ECKENBERG

This certificate must be filed pursuant to Rule 104 of the General Rules of Practice for the District Courts, which states: "A party filing a civil case shall, at the time of filing, notify the court administrator in writing of the name, address, and telephone number of all counsel and unrepresented parties, if known (see form 104 appended to these rules). If that information is not then known to the filing party, it shall be provided to the court administrator in writing by the filing party within seven days of learning it. Any party impleading additional parties shall provide the same information to the court administrator. The court administrator shall, upon receipt of the completed certificate, notify all parties or their lawyers, if represented by counsel, of the date of filing the action and the file number assigned."

LIST ALL LAWYERS/PRO SE P ARTIES INVOLVED IN THIS CASE.

LA WYER FOR PLAINTIFF(S) Eric J. Magnuson, No. 0066412 Neal T. Buethe, No. 166030 Michael C. Wilhelm, No. 387655 Briggs and Morgan, P.A.

2200 IDS Center

Minneapolis, MN 55402

(612) 977-8400

And

Tony P. Trimble, No. 122555 Matthew W. Haapoja, No. 268033 Trimble & Associates, Ltd.

Suite 130

10201 Wayzata Boulevard Minneapolis, MN 55305 (952) 797-7477

LAWYER FOR DEFENDANT(S) (If not known, name party and address)

Melanie S. Ford, No. 0257886 St. Louis County Attorney Duluth Court House

100 North 5th Avenue West, #501 Duluth, MN 55802

(218) 726-2323

Date: November 12,2010.

2996193vl

Emmer for Governor,

Case No.

-------


DISTRICT COURT



Plaintiff,

vs.

COMPLAINT


Defendants.

Plaintiff Emmer for Governor, for its Complaint against Defendant's St. Louis County,

Donald Dicklich, in his official capacity as St. Louis County Auditor, and Gary Eckenberg in his

official capacity as a responsible authority for the collection, use, and dissemination of data in St.

Louis County, states and alleges as follows:

INTRODUCTION

organization through which Thomas E. Emmer, Jr., Minnesota gubernatorial candidate,

1. Plaintiff Emmer for Governor (the "Campaign" or "Plaintiff') is the campaign

conducted his candidacy for office in the November 2,2010 general election.

2. Defendant St. Louis County is a political subdivision of the State of Minnesota. St. Louis

County administers elections pursuant to Minnesota election laws, Minn. Stat. Ch. 200-

2IIC (2010) ("Minnesota Election Law").

3. Defendant Donald Dicklich ("Dicklich") is the County Auditor for St. Louis County and

is the principal county officer charged with duties relating to elections. Upon information

and belief, Gray is the individual responsible for the collection, use, and dissemination of

any set of data related to the conduct of elections in St. Louis County pursuant to

2993886v2

Minnesota Election Law and the Minnesota Government Data Practices Act, Minn. Stat.

Ch. 13 ("MGDP A").

4. Defendant Gary Eckenberg ("Eckenberg") is the Deputy County Administrator for St.

Louis County. Upon information and belief, Eckenberg is also responsible for the collection, use, and dissemination of any set of data related to the conduct of elections in St. Louis County pursuant to Minnesota Election Law and the MGDP A.

5. This action present Plaintiffs claims that it is now entitled to inspect or receive, on an expedited basis, documentation and information that it requested from Defendants in accordance with the MGDP A.

6. Venue in this County is proper pursuant to Minn. Stat. § 13.08, Subd. 3.

BACKGROUND

7. On November 2, 2010, the State of Minnesota conducted an election for the office of Governor of the State of Minnesota.

8. Interim vote totals published by the Secretary of State's Office show that the two (2) leading candidates in that election, Thomas E. Emmer, Jr. and Mark B. Dayton are separated by less than one-half (1/2) of one percent (1 %) of total of all votes cast for that office.

9. Where the total votes separating the candidates are certified by the State Canvassing Board to be less than one-half (1/2) of one percent (1 %) of the total of all votes cast for the office of Governor of the State of Minnesota, Minnesota Election Law directs the Secretary of State to oversee a mandatory manual recount of all votes cast in the State for that office. Minn. Stat. § 204C.35, Subd. l(b)(1).

10. The Secretary of State has scheduled that recount to commence on November 29,2010.

2993886v2

"immediately" .

11. On November 3, 2010, Matthew W. Haapoja, in his capacity as counsel for Plaintiff, sent two (2) electronic letters directed to Dicklich requesting information pursuant to the MGDPA. Copies of the November 3, 2010 letters are attached as Exhibit A ("First Request").

12. In the First Request, Haapoja asked that Defendants produce machine, tapes, summary statements, ballot security information, and revisions to reported election night results. Haapoja indicated within the First Request that the information was desired

13. On November 4,2010, Haapoja sent three (3) additional electronic letters directed to Dicklich requesting information pursuant to the MGDPA. Copies of the November 4, 2010 letters are attached as Exhibit B ("Second Request").

14. In the Second Request, Haapoja asked that Defendants produce absentee ballot information, voter registration information, names of election judges, incident reports and information provided to or for the benefit of the Dayton for Governor campaign.

Haapoja indicated within the Second Request that the information was desired

"immediatel y".

15. On November 9, 2010, Tony P. Trimble, in his capacity as counsel for Plaintiff, sent an email summarizing the prior requests to Dicklich and St. Louis County Attorney Melanie Ford to obtain the status of the requests ("Status Request"). A copy ofthis email is attached as Exhibit C ("Summary Request").

16. As of November 12,2010 St. Louis County, Dicklich, and Eckenberg have failed to produce the information requested in the First Request and Second Request. As of November 12,2010, the only position stated by Defendants is that other matters

2993886v2

FIRST CAUSE OF ACTION

pertaining to the election will be addressed prior to any response to these Requests, and

that no response of any kind will be forthcoming for at least 14 days. A true and correct

copy ofSt. Louis County's response to Emmer for Governor's requests is attached hereto

as Exhibit E.

17. Plaintiff has requested public information that has been collected and maintained by the

Defendants. The requested information has not been classified so as to deny Plaintiff

access by any statutory section, temporary classification, or provision of Minnesota or

federal law.

18. Defendant's denial and! or failure to provide the requested information has prevented

Plaintiff from developing a complete record upon which to enforce its rights under the

canvass, recount and contest procedures provided in Minnesota Election Law.

INJUNCTION

Minnesota Government Data Practices Act, Minn. Stat. § 13.08, Subd. 2.

19. Plaintiff incorporates each of the foregoing allegations with this Complaint as though set

forth fully herein.

20. Defendants' refusal or failure to provide machine, tapes, summary statements, ballot

security information, revisions to reported election night results, absentee ballot

information, voter registration information, names of election judges, incident reports and

information provided to or for the benefit of the Dayton for Governor campaign violates

Minn. Stat. 13.03, Subd. 3, and thus, Defendants have wrongfully prevented Plaintiff

from receiving public data to which Plaintiff is entitled under Minnesota law.

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THIRD CAUSE OF ACTION

21. Because Defendants have violated and are continuing to violate the MGDPA, the Court

should enjoin them, under Minn. Stat. § 13.08, Subd. 2, from using or employing any

practices which violate the MGDP A.

SECOND CAUSE OF ACTION

ACTION TO COMPEL COMPLIANCE

Minnesota Government Data Practices Act, Minn. Stat. § 13.08, Subd. 4.


forth fully herein.

23. Defendants' refusal to provide machine, tapes, summary statements, ballot security

information, revisions to reported election night results, absentee ballot information,

voter registration information, names of election judges, incident reports and information

provided to or for the benefit of the Dayton for Governor campaign violates Minn. Stat.

13.03, Subd. 3, and thus, Defendants have wrongfully prevented Plaintiff from receiving

public data to which Plaintiff is entitled under Minnesota law.

24. Because Defendants have violated and are continuing to violate the MGDP A, the Court

should enter an order to compel their compliance under Minn. Stat. § 13.08, Subd. 4.

MANDAMUS

Minnesota Government Data Practices Act, Minn. Stat. § 586.01 et seq.


forth fully herein.

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26. The Court is authorized pursuant to Minn. Stat. § 586.01, et seq., to issue a writ of mandamus to compel a political subdivision, including any county officials, to take action to avoid arbitrary and capricious results.

27. The Court also has equitable authority to issue a mandatory injunction requiring the Defendants in this case to take action to comply with the MGDP A. Defendants have, in violation of the MGDP A, arbitrarily and capriciously failed to comply with Plaintiff s requests for information under the MGDP A.

28. Plaintiff is entitled to a writ of mandamus and a mandatory injunction compelling Defendants to produce the required information pursuant to the MGDP A.

WHEREFORE, Plaintiff respectfully requests the Court enter judgment in Plaintiffs favor, including but not limited to:

1. An order determining and declaring that Plaintiff has a statutory right to obtain or access machine, tapes, summary statements, ballot security information, revisions to reported election night results, absentee ballot information, voter registration information, names of election judges, incident reports and information provided to or for the benefit of the Dayton for Governor campaign according to the provisions of the MGDPA.

2. Enjoining Defendants from refusing or failing to provide all public data Plaintiff has a right to receive under the MGDP A.

3. Compelling Defendants to disclose the requested data immediately for a cost fairly representing the reasonable costs of collecting and copying the requested data.

4. Ordering all other equitable and legal relief to which Plaintiff may be entitled.

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Dated: November 12,2010


Eric J. Magnuson, No. 0 6

Neal T. Buethe, No. 1660 Michael C. Wilhelm, No. 387655

2200 IDS Center






2993886v2

·- .

i .


Attorneys at Law

10201 Wayzata Boulevard Suite 130

Minneapolis, Minnesota 55305

Telephone: 952-797-7477 Facsimile: 952-797-5858 Email: trimblelegals@earthlink.net

November 3, 2010

Dear Election Official:

We represent Emmer for Governor and the Republican Party of Minnesota ("RPM").

This correspondence a request for access to public data relating the 2010 general election in your jurisdiction under the Minnesota Government Data Practices Act ("MGDP A"), Minnesota Statutes, Chapter 13. As you know, Minnesota Statutes Section 15.17, the Official Records Act, requires all government entities to make and maintain all records that are necessary to a full and accurate knowledge of their official activities. Section 13.03, subdivision I, of theMGDPA requires government entities to keep records that contain government data in a way (or ways) that makes the data easily accessible for convenient use.

We hereby request the following information immediately relative to the 2010 general election:

• Copies of election night machine tape results for all precincts within your county

• Copies of all election night summary statements/tally sheets (if any) for all hand-count precincts within your county (including tally sheets maintained by your offices)

• Copies of all records relating to security, location and access to ballots cast in your county as required to be maintained by your office under Minnesota

EXHIBIT A

Statutes Section 204C.28.

• Information relating to all revisions made by your county to results reported election night, including precinct name, specific revision made and the reason for the revision.

The foregoing data will not be used for purposes other than those pennitted under Minn. Stat. 201.091.

Please provide this information via email to trimblelegals@earthlink.net or via facsimile to 952-797-5858. Due to time sensitivities, if you cannot provide this infol·mation electronically (email or facsimile), please contact Aaron Cocking at 651-222-0022 (at RPM) or the undersigned at 952-797-7477 to arrange pick-up of the same. Thank you.

Sincerely,

.. ~.~ ~~........................... I ... I.·)). r?. " ... ft,>A; //1" r~

Tony P. Trimble

Matthew W. Haapoja

Paid for by the Republican Party of Minnesota.

Not authorized by any candidate or candidate's committee. www.mngop.com.

This message sent to shc@mngop.com by chairman@mngop.com.

Republican Party of Minnesota 525 Park Street

Suite 250

SL Paul, MN 55103

, powered by. ' i Electionlt41wm i

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Attorneys at Law




November 4, 2010



This correspondence a request for access to public data relating the 2010 general election in your jurisdiction under the Minnesota Government Data Practices Act ("MGDPA"), Minnesota Statutes, Chapter 13. As you know, Minnesota Statutes Section 15.17, the Official Records Act, requires all government entities to make and maintain all records that are necessary to a full and accurate knowledge of their official activities. Section 13.03, subdivision 1, of the MGDPA requires government entities to keep records that contain government data in a way (or ways) that makes the data easily accessible for convenient use.

v.,r e hereby request the following information immediately relative to the 2010 general election:

• Names of all individuals serving as election judges on election night for all precincts within your municipality and the precincts in which such individuals served

The foregoing data will not be used for purposes other than those permitted under Minn. Stat. 20 l.09l.

Please provide this information via email to trimblelegals@earthlink.net or via facsimile to 952-797-5858. Due to time sensitivities, if you cannot provide this information electronically (email or facsimile), please contact Aaron

EXHlBIT B

Cocking at 651-222-0022 (at RPM) or the undersigned at 952-797-7477 to arrange pick-up of the same. Thank you.

Sincerely,

... ~ - .. -.-:- .

jJ ~ ..

. .-.-, ",.-.- .. ". ,." _'-'_'-'

.. .

. .

~ r : ~">(.

Tony P. Trimble

Matthew W. Haapoja


Not authorized by any candidate or candidate's committee. www.rnnqop.corn.

This message sent to shc@rnngop.com by chairrnan@mngop.com.


Suite 250

si Paul, MN 55103



Attorneys at Law



Telephone: 952-797-7477 Facsimile: 952-797-5858 Email: trimhlelegals@earthlink.net

November 4,2010



This correspondence a request for access to public data relating the 2010 general election in your jurisdiction under the Minnesota Government Data Practices Act ("MGDPA~~), Minnesota Statutes, Chapter 13. As you know, Minnesota Statutes Section 15.17, the Official Records Act, requires all government entities to make and maintain all records that are necessary to a full and accurate knowledge of their official activities. Section 13 .03, subdivision 1, of the MGDP A requires government entities to keep records that contain government data in a way (or ways) that makes the data easily accessible for convenient use.

This correspondence supplements our request from yesterday regarding absentee ballot information. Please disregard yesterday's request.


• Total number of rejected absentee ballots in your jurisdiction and the reasons for such rejections

• Total number of accepted absentee ballots in your jurisdiction

• Photocopies of all envelopes relating to accepted and rejected absentee ballots in your jurisdiction, including the name and address of the voter and the reasons for the rejection if applicable

• Names and addresses of all persons who applied for absentee ballots, whether or not absentee ballots were cast

• Photocopies of all voter registration applications and absentee ballot applications for all absentee voters, whether or not those absentee ballots were cast and whether or not votes were accepted and rejected.

• All information you have provided to the Dayton for Governor campaign or its counselor other representatives relative to absentee ballot applications, absentee ballots and/or absentee voters in your jurisdiction.

The foregoing data will not be used for purposes other than those permitted under Minn. Stat. 201.091. Please provide this information via email to trimhlelegals@earthlink.net or via facsimile to 952-797-5858. Due to time sensitivities, if you cannot provide this information electronically (email or facsimile), please contact Aaron Cocking at 651-222-0022 (at RPM) or the undersigned at 952-797-7477 to arrange pick-up of the same. Thank you.

Sincerely,

Tony P. Trimble

Matthew W. Haapoja





Suite 250

St. Paul, MN 55103



Attorneys at Law




November 4,2010



This correspondence a request for access to public data relating the 2010 general election in your jurisdiction under the Minnesota Government Data Practices Act ("MGDPA"), Minnesota Statutes, Chapter 13. As you know, Minnesota Statutes Section 15.17, the Official Records Act, requires all government entities to make and maintain all records that are necessary to a full and accurate knowledge of their official activities. Section 13.03, subdivision 1, of the MGDP A requires government entities to keep records that contain government data in a way (or ways) that makes the data easily accessible for convenient use.


• All election-day incident reports prepared by election judges and/or other election officials

The foregoing data will not be used for purposes other than those permitted under Minn. Stat. 201.091.

Please provide this information via email to trimblelegals@earthlink.net or via facsimile to 952-797-5858. Due to time sensitivities, if you cannot provide this information electronically (email or facsimile), please contact Aaron Cocking at 651-222-0022 (at RPM) or the undersigned at 952-797-7477 to arrange pick-up of the same. Thank you.

Sincerely,

Tony P. Trimble

Matthew W. Haapoja





Suite 250

St. Paul, MN 55103

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Attorneys at Law

November 9,2010

VIA EMAIL ONLY

Re: Minnesota Government Data Practices Act Request


This office represents Emmer for Governor and the Republican Party of Minnesota ("RPM").

On November 3 and 4, 2010, my client requested access to public data relating to the 2010 general election in your jurisdiction under the Minnesota Government Data Practices Act ("MGDPA"), Minnesota Statutes, Chapter 13. Copies of my client's original MGDPA requests are attached to this letter.

As you know, Minnesota Statutes Section 13.03, subdivision 2, the Official Records Act, requires the responsible authority in every government entity to comply with MGDPA requests "in an appropriate and prompt manner."

However, to date we have not received a response from your office.

If your office does not provide the requested data to which my client is legally entitled by close of business on Thursday, November 11,2010, we will immediately take any and all appropriate legal action under Minnesota Statutes Section 13.08.

Sincerely,

Tony P. Trimble Matthew W. Haapoja Cc: Name

____ County Attorney

EXHfBIT C

po .-.

loCKRIDGE GRINDAL NAUEN'

MINNEAl'OUS Suiec2200

100 Washington Avenue South Minneapolis, MN 55401-2179 T 612.339.6900

F 612.339.0981

WASHINGTON, D.C. Suirc210

415 Second Street, N.E. Washington, DC 20002-4900 T 202.544.9840

F 202.544.9850

P.l.L.P.

Anorneys Be Law

www.locklaw.com

Charles N. Nauen Direct: 612-596-4006 cnnauen@locklaw.com

REPLY TO MINNEAPOLIS

November 10,2010

VL4 E-MAIL

Re: URGENT - Minnesota Government Data Practices Act Request

Dear Local Election Official:

My office represents the Dayton Recount Fund in connection with the pending administrative recount in the 2010 gubernatorial election. I understand that, in the past several days, representatives of the Emmer campaign and/or the Republican Party of Minnesota (through Attorney Tony Trimble) have submitted requests for information to multiple jurisdictions pursuant to the Minnesota Government Data Practices Act.

We understand that the data requests submitted by Attorney Trimble are wide-ranging and burdensome data requests. However, we are in a position where we must remain informed about any such requests and receive copies of your responses and any data provided.

Accordingly, pursuant to that Act, we request that you provide us with the following;

• A copy of any Data Practices request(s) submitted to you by representatives of the Emmer campaign, the Republican Party, or any other entity or person else relating to the 2010 general election.

• A copy of any information provided pursuant to these requests.

We are prepared to pay reasonable costs for the collecting and copying of this data, as provided by the Act. To the extent possible, we prefer to receive this information inelectronic form. Please contact my colleague David J. Zoll (612-596-4028 or dizoI1@locklaw.com) to make arrangements for payment and delivery of the information.

Please also consider this a continuing request throughout the period of the recount and provide us with copies of information responsive to any future Data Practices requests regatding the 2010 general election submitted by representatives of the Emmer campaign, the Republican Party, or anyone else throughout the period of the recount and election contest, if any.

EXHIBIT D

Very truly yours,

November 10, 2010 Page 2

Because this is a highly time-sensitive matter under Minnesota's election laws, we request that any information already provided to Emmer campaign or the Republican Party be provided to us within two business days of this request. With respect to future requests, we would ask that you provide us such information simultaneously with the requesting party.

Thank you very much for your assistance and cooperation on this important matter.

Charles N. Nauen

c: Dayton Recount Fund David L. Lillehaug Christopher A. Stafford William A. Gengler . David J. Zoll

Kevin Z. Gray County Administrator

Saint Louis County

Administration· 100 North Fifth Avenue West, Room 202 • Duluth, MN 55802 Phone: (218) 726-2450' Fax: (218) 726-2469 • www.co.st-Iouis.mn.us

November 10,2010

Tony P. Trimble

Matthew W. Haapoja Trimble & Associates, LTD.

10201 Wayzata Boulevard, Suite 130 Minneapolis, MN 55305

RE: DATA PRACTICES INFORMATION REQUEST

Dear Mr. Trimble and Mr. Haapoja,

The St. Louis County Administrator's Office has received your Data Practices Information Requests submitted on November 3, November 4, and again on November 9,2010 requesting the following information regarding the 2010 general election held on November 2:

• Copies of election night machine tape results for all precincts within your county.

• Copies of all election night summary statements/tally sheets (if any) for all hand-count precincts within your county (including tally sheets maintained by your offices).

• Copies of all records relating to security, location and access to ballots cast in your county as required to be maintained by your office under Minnesota Statutes Section 204C.28.

• Information relating to all revisions made by your county to results reported election night, including precinct name, specific revision made and the reason for revision.

• All polling rosters, voter sign-in sheets, and same-day registration sign-ins.

• Total number of rejected absentee ballots in your county and the reasons for such rejections.

• Total number of accepted absentee ballots in your county.

• Photocopies of all envelopes relating to accepted and rejected absentee ballots in your county or municipality (as applicable), including the name and address of the voter and the reasons for the rejection of the ballot.


EXHIBIT E

"An Equal Opportunity Employer'

Page 2

Data Practices Information Request Trimble & Associates, LTD.

• All information you have provided to the Dayton for Governor Campaign or its counselor other representatives relative to absentee ballot applications, absentee ballots and/or absentee voters in your county.

• All election-day machine tapes prepared by election judges and/or other election officials.

• Names of all individuals serving as election judges on election night for all precincts within your municipality and the precincts in which such individuals served.

• All election-day incident reports prepared by election judges and/or other election officials.

• Names and addresses of all persons who applied for absentee ballots, whether or not absentee ballots were cast.

• All "Voucher Forms" and "Precinct Lists of Persons Vouching" as prepared/filled out on election day.

As you are aware, the St. Louis County Auditor's Office must accomplish a significant number of legal responsibilities associated with the 2010 General Election. Because of this, all of these requirements will be addressed prior to the dedication of staff and resources necessary to fulfill your request. We anticipate a response to your inquiry within fourteen (14) calendar days from the date of this letter. Should there be any problems in gathering the data you request, or a charge for the information, that will be communicated to you prior to proceeding with the request.

Please contact me at 726-2447 or at eckenbergg@co.st-louis.mn.us if you have additional questions.

Sincerely,

crary 6ckenberg

Gary Eckenberg

Deputy St. Louis County Administrator


c: Kevin Z. Gray, County Administrator Donald Dicklich, County Auditor Patricia Stoiee, Deputy County Auditor Melanie Ford, County Attorney

Barbara Russ, Assistant County Attorney


DISTRICT COURT



Emmer for Governor,

Case No.

-------

Plaintiff,

vs.


NOTICE OF MOTION AND MOTION FOR INJUNCTIVE RELIEF

Defendants.

To: Defendants and their counsel of record: Melanie S. Ford, St. Louis County Attorney, St.

Louis County Courthouse, 100 North 5th Avenue West, #501, Duluth, MN 55802.

NOTICE OF MOTION

PLEASE TAKE NOTICE that at the earliest time available with the Court before a Judge

of the District Court and in a courtroom to be determined, Plaintiff will bring the following

motion for hearing at the St. Louis County Courthouse, 100 North 5th Avenue West, #501,

Duluth, MN 55802. This motion will be based upon all of the files and records herein, including

the memorandum and the Affidavit of Matthew W. Haapoja submitted herewith.

MOTION

Plaintiffs move for an Order as follows:

1. Declaring and adjudging that Plaintiff has the right to obtain or access all public data

indentified in its November 3, 2010 and November 4,2010 Minnesota Government Data

Practices Act requests to Defendants, including machine tapes, summary statements,

ballot security information, revisions to reported election night results, absentee ballot

information, voter registration information, names of election judges, incident reports and

information provided to or for the benefit of the Dayton for Governor campaign.

3000754vl

sufficient service for all purposes.

2. Enjoining Defendants, and all persons acting in concert with them, from refusing to

provide the public data Plaintiff has requested under the MGDPA.

3. Ordering Defendants, and all persons acting in concert with them, to produce the public

data requested by Plaintiff on a rolling basis at a fee fairly representing Defendants'

reasonable production costs, with all public data requested by Plaintiff to be disclosed

within 5 business days.

4. Authorizing service of the Order to be made upon Defendants by delivery or facsimile

transmission to the Office of the St. Louis County Attorney, which shall be deemed

Dated: NovemberCz, 2010


~~412

Neal T. Buethe, No. 166030 Michael C. Wilhelm, No. 387655 2200 IDS Center






3000754vl


DISTRICT COURT



Emmer for Governor,

Plaintiff,

Case No.

_------

vs.


MEMORANDUM IN SUPPORT OF MOTION FOR INJUNCTIVE RELIEF

Defendants.

INTRODUCTION

In this action, plaintiff Emmer for Governor ("Plaintiff' or "Emmer for Governor") seeks

an injunction requiring St. Louis County and its election officials to comply with the Minnesota

Government Data Practices Act, Minn. Stat. Ch. 13 ("MGDP A") by producing certain public

election data within a reasonable time. Plaintiff has requested the same information from all

Minnesota counties, and many of those counties have either already produced the requested

1

information or provided a specific date for production. St. Louis County and its election

officials, on the other hand, have responded by unequivocally stating that it will not treat Emmer

for Governor's requests as matters of priority, that it will attend to other matters before

responding to the requests, and that it will not even address the requests for 14 days in violation

of their obligations under the MGDPA.

The MGDPA codifies Minnesota's "fundamental commitment" to making the operations

of its institutions open to the public. Prairie Island Indian Cmty. v. Minn Dep 't of Pub. Safety,

658 N.W.2d 876, 883 (Minn. Ct. App. 2003). As the MGDPA plainly states, absent some

express provision to the contrary, a "presumption [exists] that government data are public and

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2

are accessible by the public for both inspection and copying." Minn. Stat. § 13.03, subd.l. The MGDP A further provides that "[i]f the responsible authority ... is not able to provide copies at the time a request is made, copies shall be supplied as soon as reasonably possible." Minn. Stat. § 13.03, Subd. 3(c) (emphasis added). Defendants St. Louis County, Donald Dicklich, and Gary Eckenberg (collectively "Defendants" or "St. Louis County") have disregarded these mandates with respect to certain information that most critically requires public oversight: information relating to the disenfranchisement of would-be voters. As a result, Plaintiff has been forced to seek access to the information through this request for emergency relief.

The need for the information is urgent. In less two (2) weeks, a manual recount will begin in a Minnesota gubernatorial election between Thomas E. Emmer, Jr. and Mark B. Dayton. Before the recount can begin, the State Canvassing Board must convene to certify the results of the initial vote count. As a result of these expedited timelines, preparations by all involved parties are already underway, with governmental officials in the process of tallying the votes for next week's verification. As the certification, recount, and related processes unfold, the importance of transparency, accessibility, and timeliness cannot be overstated. Exercising its right under the MGDP A, Emmer for Governor asked St. Louis County to provide it with the requested election materials consisting of machine tapes, summary statements, ballot security information, revisions to reported election night results, absentee ballot information, voter registration information, names of election judges, incident reports and information provided to or for the benefit of the Dayton for Governor campaign. Defendants have failed to provide access to this information despite additional requests underscoring the urgency of the need for such information. Accordingly, Emmer for Governor is being irreparably harmed in its ability to

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STATEMENT OF FACTS

prepare for recount procedures by St. Louis County's failure to provide the requested

information.

Emmer for Governor respectfully requests that this Court issue an injunction requiring

compliance with the MGDP A from St. Louis County, with immediate production of any

available data, and complete disclosure of all public data requested by Emmer for Governor

within 5 business days. Moreover, Plaintiff will pay the reasonable costs incurred in responding

to these requests, as provided by law. Plaintiff is not seeking to impose any additional financial

burden on the counties or election officials. I Plaintiff seeks only information that is public and

to which it and all interested parties are entitled.

The election between Thomas E. Emmer, Jr. and Mark B. Dayton for the office of

Governor of the State of Minnesota took place on Tuesday, November 2, 2010. Interim election

results published by the Minnesota Secretary of State indicate that the number of votes counted

for each candidate is substantially within one-half (112) of one percent (1 %). A difference this

slights triggers an automatic recount, pursuant to Minn. Stat. § 204C.35.

Before the recount can begin, however, the State Canvassing Board must convene on

Tuesday, November 23, 2010, for the purpose of preparing and certifying a report detailing the

votes received and allowing the manual recount of the ballots to begin. Minn. Stat. §204C.33,

subd. 3. Certification requires county canvassing boards to canvass the general election returns

and the State Canvassing Board to canvass the certified copies of the county canvassing board

3

reports. Minn. Stat. § 204.33, Subds. 1, 3. The recount is scheduled to begin the Monday

I Plaintiff is not seeking an award of costs, disbursements, or attorney's fees in this action, nor is Plaintiff seeking to impose civil fines on St. Louis County, as authorized by Minn. Stat. § 13.08, Subd.4.

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following the certification (November 29, 2010), and an election contest may be initiated subsequent to the certification of the results of the recount. Minn. Stat. § 204C.35(d). At the time of the instant filing, the process of canvassing has already begun and is currently well in progress.

In the few weeks that will decide the outcome of the election, the ultimate determination will be which candidate received the most votes. Critical to such determination is the inclusion of all validly cast ballots and the proper tabulation of such ballots. Without the requested data, Emmer for Governor is unable to ensure the security of the voted ballots, verify that validly cast ballots were counted or confirm that votes in the gubernatorial race were properly tabulated. Nor is it possible for Emmer for Governor to gather additional evidence that might be necessary to establish a ballot's validity.

On November 3, 2010, Emmer for Governor, through its attorneys, provided St. Louis County with two (2) written MGDP A requests ("First Request"), which asked that the requested information be made available "immediately." A copy of the First Request is attached as Exhibit A to the Affidavit of Matthew W. Haapoja submitted herewith ("Haapoja Affidavit"). On November 4,2010 provided three (3) additional requests for information ("Second Request"). A copy of the Second Request is attached as Exhibit B to the Haapoja Affidavit.

Having received no response, on November 9, 2010, Tony P. Trimble, as counsel for Plaintiff, sent an email summarizing the prior requests to Dicklich and St. Louis County Attorney Melanie Ford to obtain the status of the requests ("Status Request"). A copy of the Status Request is attached as Exhibit C to the Haapoja Affidavit. The Status Request warned that Plaintiff would "immediately take any and all appropriate legal action under Minnesota Statutes

4

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Section 13.08" if the requested data was not provided "by close of business on Thursday, November 11,2010."

On November 10, 2010, Charles Nauen, attorney for the Dayton Recount Fund, served MGDP A requests on local election officials in all Minnesota counties, requesting the same information sought by Emmer for Governor. A copy of Nauen's request letter is attached as Exhibit D to the Haapoja Affidavit. In that letter, Nauen acknowledges that "this is a highly time-sensitive matter under Minnesota's election laws," and requests that "all information provided to the Emmer Campaign or the Republican Party be provided to us within two business days of this request."

Emmer for Governor has requested the same information sought from St. Louis County as it has requested from all 87 of Minnesota's counties. Many of these counties have already provided the requested information or have committed to a specific date for production. For example, Otter Tail County provided all of the requested information on November 11,2010. In addition, Brown County indicated that the requested information would be available for pickup on November 12,2010.

Furthermore, during the 2008 Minnesota Senate Recount, the Coleman Campaign requested the same information from all Minnesota counties that is now sought by Emmer for Governor. After determination that the data requested was public in late 2008, the information was promptly provided, and no election officials took more than two weeks to produce the information.

In contrast, St. Louis County has responded by unequivocally stating that it will not treat Emmer for Governor's requests as matters of priority, that it will attend to other matters before responding to the requests, and that it will not even address the requests for 14 days. A true and

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correct copy of St. Louis County's response to Plaintiffs requests is attached to the Haapoja affidavit as Exhibit E.

As a result of St. Louis County's response, Emmer for Governor will not learn if St.

Louis County intends to respond, and on what schedule, until after 14 days. Moreover, only after 14 days will St. Louis County disclose whether it disputes its obligation to provide the requested information. By the time that disclosure is made, valuable time will be lost for all those who are endeavoring to ensure that the outcome of this election is based on a full and complete record.

The public data requested by Plaintiff from St. Louis County is necessary for the recount of the 2010 gubernatorial election and/or to investigate and evaluate potential claims in any resulting election contest filed on behalf of either Emmer for Governor or Dayton for Governor. With respect to the recount, the requested information is necessary to verify, before the State Canvassing Board meets, that the number of votes certified by the State Canvassing Board is accurate. For this purpose, production of the election machine tapes from all Minnesota precincts is of the highest and most urgent priority.

With respect to potential election contests, Minnesota law requires that an election contest must be initiated by any Minnesota voter on behalf of a losing candidate within seven (7) days after the results of an election are certified. Minn. Stat. § 209.021. If an election is contested, the trial must be commenced within three (3) weeks after filing a notice of contest. Minn. Stat. § 209.065. To determine whether an election contest is necessary and, if so, prepare for a contest, Plaintiff must be able to review and analyze absentee ballot information, election day incident reports, and election-judge identities well in advance of the recount's completion. Access to this information will enable Plaintiff to evaluate potentially uncounted votes (absentee

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ballots) and potential election irregularities (incident reports) as well as interview potential witnesses (election judges).

Given the expedited timelines for election contests under Minnesota law, as well as the fact that Minnesota has 4,136 election precincts, time is of the essence. Any delay in production of the requested information will prejudice Plaintiff s ability to evaluate, monitor, and prepare a potential election contest regarding the 2010 gubernatorial election. As required by Minn. Stat. § 13.03, Subd. 3(c), Plaintiff is willing to pay all actual costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, and electronically transmitting the copies of the data.

To date, St. Louis County has failed to allow access to or produce the information set forth in the requests or otherwise respond to Emmer for Governor's requests. Nor has St. Louis County made any indication that provision of this information posed any significant legal or logistical burdens.

St. Louis County's failure to provide the requested information has the effect of denying representatives from Emmer for Governor the information to which the public is entitled pursuant to the MGDP A. As a result of St. Louis County's refusal to comply with the MGDPA, Emmer for Governor respectfully asks that this Court issue an injunction requiring rolling compliance from St. Louis County, with all public data requested by Emmer for Governor to be disclosed within 5 business days.

7

LEGAL ARGUMENT

I. THE STANDARD FOR INJUNCTIVE RELIEF.

While parties normally seek a temporary restraining order ("TRO") to preserve the status quo until there can be a hearing on a request for a temporary injunction, the requested injunctive

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relief in this case is affirmative. See Minn. R. Civ. P. 65.01-02. Affirmative injunctive relief is expressly authorized by the MGDPA. See Minn. Stat. § 13.08, Subds. 2 and 4. When an action to compel compliance with the MGDPA is filed, the MGDPA provides that "[t]he matter shall be heard as soon as possible." Minn. Stat. § 13.08, Subd. 4. As a result, this Court should move immediately to consider Plaintiffs request for an injunction under Minn. R. Civ. P. 65.02.

The standard for a temporary injunction is the same as that for a TRO. See MG.M Liquor Warehouse lnt'l, lnv. v. Forsland, 371 N.W.2d 75, 77 (Minn. Ct. App. 1985). A court is to weigh five factors when determining whether it should issue a temporary injunction:

1. The nature and background of the relationship between the parties pre-existing the dispute.

2. The harm to be suffered by the plaintiff if relief is denied as compared to that inflicted on defendant if it is granted pending trial

3. The likelihood that one party or the other will prevail on the merits.

4. The aspects of the fact situation, if any, which permit or require consideration of public policy.

5. The administrative burdens involved in judicial supervision and enforcement.

Metropolitan Sports Facilities Commission v. Minnesota Twins Partnership, 638 N.W.2d 214, 221 (Minn. Ct. App. 2002), review denied (Feb. 4, 2002) (citing Dahlberg Bros. v. Ford Motor Co., 137 N.W.2d 314,321-22 (Minn. 1965)).

II. EMMER FOR GOVERNOR IS ENTITLED TO AN INJUNCTION.

8

A. The Preexisting Relationship Favors an Injunction.

The preexisting relationship between the parties is based on the Minnesota Government Data Practices Act (MGDPA), Minn. Stat. § 13.01 et seq., and Minnesota election laws, Minn.

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With each passing hour, Emmer for Governor is irreparably harmed in its efforts to

Stat. Ch. 200-211 C (2010) ("Minnesota Election Law"). Under these provisions, as discussed

below, Emmer for Governor has a right to access the data it has requested. The refusal of

defendant to provide the data impermissibly alters the relationship between the parties by

infringing on clearly established rights under both election law and the MGDP A.

B. The Harm that Plaintiff Would Suffer Absent an Injunction Far Outweighs Any Harm to Defendant.

ensure that each vote validly cast is properly counted and to prepare for its participation in the

procedures that will decide this election. By contrast, the County of St. Louis will suffer no

hardship from providing information that it must organize and maintain even if neither Emmer

for Governor nor the Dayton Recount Fund requested such information.

Emmer for Governor's paramount goal is to ensure that every vote validly cast in the

election be counted. Over two million votes were cast across 87 counties. It is likely that some

validly cast ballots were erroneously rejected and/or that some portion of ballots were not

9

properly counted. See Minn. Stat. § 204C.35, Subd. l(b)(1) (providing for an automatic manual

recount in the event the differences between the votes attributed to the two leading candidates do

not exceed one-half of one percent). Without the information it has requested, Emmer for

Governor cannot determine whether the correct number of ballots were counted, identify

erroneously disenfranchised voters or gather any additional evidence that might be necessary to

establish a ballot's validity.

This is not a partisan matter. Both parties to the recount recognize that "this is a

highly time-sensitive matter under Minnesota's election laws," and the Dayton Recount

Fund has requested production of the same information sought by Plaintiff. Within two (2)

weeks, the state canvassing board will have met and the recount begun; and, soon thereafter, the

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time for a contest will have arrived. Minn. Stat. § 209.021, Subd. 1. In short, the process of determining which candidate Minnesota voters have places into office is already well underway, and, as a result of Defendants' refusal to comply with the law, Emmer for Governor is significantly prejudiced in its ability to obtain crucial information from one of Minnesota's most populous counties.

In contrast, St. Louis County will suffer no harm by complying with its legal obligations and providing the requested information. As demonstrated by other counties which have already produced the information sought in this matter, the data is neither burdensome to compile nor voluminous. Indeed, it almost certainly has already been compiled either as a part of the precinct reconciliation process or the county canvassing board process. Moreover, Plaintiff will be required to pay all costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, and electronically transmitting the copies of the data, pursuant to Minn. Stat. § 13.03, Subd. 3(c). Therefore, even if St. Louis County needs to hire temporary workers to produce the requested information within the time requested by this motion, it can do so without incurring any additional costs.

C. Emmer for Governor is Likely to Prevail on the Merits.

The MGDPA Entitles Emmer for Governor to the Data It Has Requested.

Emmer for Governor is unquestionably entitled to receipt of the data identified in its MGDP A requests. The MGDP A "establishes a presumption that government data are public and are accessible by the public for both inspection and copying unless there is a federal law, a state statute, or a temporary classification of data that provides that certain data are not public." Minn. Stat. § 13.01, subd. 1. "Because of [Minnesota's] commitment to transparency in our public institutions, courts construe the MGDP A 'in favor of public access. '" International Broth. Of

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Elec. Workers, Local No. 292 v. City of St. Cloud, 750 N.W.2d 307, 312 (Minn. Ct. App. 2008) (internal quotation marks omitted). Pursuant to Minnesota Regulations, responsible authorities are required to "establish procedures to describe how such access may be gained" prior to receiving any such requests. Minn. R. § 1205.0300.

There is no "specific statutory section, temporary classification, or specific provision of federal law" that exempts the requested information from disclosure. Minn Stat. § 13.01, subd. 1. Indeed, all of the information sought by Plaintiff was determined to be public during the 2008 Minnesota Senate Recount, and is currently being sought by the Dayton Recount Fund.

Minnesota election law favors transparency and openness in disclosure of election materials and information. See, e.g. Minn. Stat. § 201.091, subd. 4 (providing that the name, address, year of birth, and voting history of each registered voter in the county is part of a "public information list" available for inspection); Minn. Stat. § 210.1 71 (providing that voting history includes late or absentee ballots). Accessibility to governmental data is so important that the MGDP A provides that anyone who has been denied public data may recover damages, costs, and attorney fees, and, in some instances civil penalties and exemplary damages, while willful violation of the MGDP A is a misdemeanor and is just cause for suspension without payor dismissal. See Minn. Stat. § 13.09. There is ample case law emphasizing the need to construe the MGDPA in favor of transparency. See, e.g., Prairie Island Indian Cmty. v. Minn. Dep 't of Pub. Safety, 658 N.W.2d 876, 883-84 (Minn. Ct. App. 2003). It is difficult to imagine an area in which the need for transparency is greater than in the administration of the electoral system, with "[ c ]onfidence in the integrity of our electoral processes ... essential to the functioning of our participatory democracy." Purcell v. Gonzalez, 549 U.S. 1, 7 (2006).

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D. Public Policy Militates In Favor of an Injunction.

Public policy militates in favor of an injunction, for numerous reasons. At the outset, the MGDP A represents a "fundamental commitment to making the operations of our public institutions open to the public." Prairie Island Indian Cmty., 658 N.W.2d 307, 312 (Minn. Ct. App. 2008); Demers v. City 0/ Minneapolis, 468 N.W.2d 71, 73 (Minn. 1991). In this case, Plaintiff seeks only data classified as "public" under Minnesota law and is not requesting the production of any private data. To the extent any private data is commingled with the data requested by Plaintiff, it can be redacted.

In addition, disclosure of the information helps both Emmer for Governor and the Dayton Recount Fund ensure that all valid votes are counted, thereby protecting the most fundamental of rights. The right to vote is the defining and singular privilege of citizenship. See, e.g., Burdick v. Takushi, 504 U.S. 428, 433 (1992) ("It is beyond cavil that 'voting is of the most fundamental significance under our constitutional structure."'); see also Erlandson v. KifJmeyer, 659 N.W.2d 724, 729 (Minn 2003) ("[N]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.") (quoting Burson v. Freeman, 504 U.S. 191, 199 (1992)); In re Candidacy of Independence Party Candidates Moore v. KifJmeyer, 688 N.W.2d 854, 860 (Minn. 2004) ("Denial of a candidate's access to the ballot implicates important constitutional rights that are central to preservation of our democracy: the right to vote and the right to associate in pursuit of common political ends.") (citing Anderson v. Celebrezze, 460 U.S. 780, 787-788 (1983)). Not only Emmer for Governor, but the voters whose ballots may have been wrongfully rejected or not properly counted, as well as the State of

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CONCLUSION

Minnesota, have an overriding interest in ensuring that all valid votes are counted, thereby

protecting the rights of all voters.

E. The Administrative Burdens Would Be Minimal.

Emmer for Governor does not seek a remedy that would require significant Court

administration. Governmental entities routinely provide information of the nature Emmer for

Governor has requested. As other Minnesota counties have demonstrated, the information,

which is organized and maintained by St. Louis County, can be copied and conveyed to Emmer

for Governor in short order.

Emmer for Governor requests that this Court immediately issue an injunction requiring

rolling compliance with the MGDPA from St. Louis County, with all public data requested by

Emmer for Governor to be disclosed within 5 business days. A proposed order is submitted

herewith.

Dated: November\'k-2010

Eric J. Magnuson, Neal T. Buethe, No . .,.....~,.fl Michael C. Wilhelm, No. 387655

2200 IDS Center

80 South Eighth Street Minneapolis, Minnesota 55402 612-977 -8400




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DISTRICT COURT



Emmer for Governor,

Case No.

-------

Plaintiff,

vs.


AFFIDAVIT OF MATTHEW W. HAAPOJA

Defendants.

Matthew W. Haapoja, being duly sworn, on oath states and deposes as follows:

1. I am one of the attorneys for Emmer for Governor ("Plaintiff') pursuant to the above-

captioned matter.

2. On November 3,2010, I submitted two (2) electronic letters to St. Louis County directed

to Dona Dicklich ("Dick1ich") requesting information pursuant to the Minnesota

Government Data Practices Act, Minn. Stat. Ch. 13 (2010) ("MGDPA"). Copies of the

November 3,2010 letters are attached hereto as Exhibit A ("First Request").

3. On November 4,2010, I submitted three (3) electronic letters to St. Louis County

directed to Dicklich requesting information pursuant to the MGDP A. Copies of the

November 4,2010 letters are attached hereto as Exhibit B ("Second Request").

4. Having received no response, on November 9, 2010, Tony P. Trimble, as counsel for

Plaintiff sent an email summarizing the prior requests to Dicklich and St. Louis County

Attorney Melanie Ford to obtain the status of the requests. A copy of the November 9,

2010 email is attached hereto as Exhibit C ("Status Request").

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5. On November 10, 2010, Charles Nauen, attorney for the Dayton Recount Fund, served MGDP A requests on local election officials in all Minnesota counties, requesting the same information sought by Emmer for Governor. A true and correct copy of Nauen's November 10, 2010 request letter is attached hereto as Exhibit D.

6. As of November 12, 2010, St. Louis County has failed to provide to Plaintiff or allow Plaintiff access to the information requested in the First Request and Second Request.

7. The need for the requested information is urgent. A manual recount relative to the Minnesota gubernatorial election is scheduled to commence in less than two (2) weeks. Before the recount can being, the State Canvassing Board must convene to certify the results of the initial vote count. As a result of these expedited timelines, preparations by all parties are already underway and failure to receive the requested information impedes Plaintiffs ability to properly adequately prepare for impending proceedings.

8. Plaintiffs inability to obtain the requested information irreparably harms Plaintiffs ability to ensure that each validly cast vote is properly counted and to prepare for participation in the procedures that will decide the Minnesota gubernatorial election.

9. Plaintiffs goal is to ensure that every vote that was validly cast in the Minnesota gubernatorial election is counted in determining which candidate received the most votes. Approximately 2.1 million votes were cast across eighty-seven (87) counties. It is likely that some validly cast ballots were erroneously rejected and/or that some portion of ballots were not properly counted. Recognizing this reality, Minn. Stat. § 204C.35, Subd. 1 (b)(1) provides for an automatic manual recount in the event the differences between the votes attributed to the two leading candidates do not exceed one-half of one percent.

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10. Without the information it has requested, Emmer for Governor cannot determine whether the correct number of ballots were counted, identify erroneously disenfranchised voters and gather any additional evidence that might be necessary to establish a ballot's validity. By way of example, without the information requested, Plaintiff cannot identify which absentee voters cast ballots that were wrongfully rejected and therefore not properly counted.

11. Moreover, Plaintiff will be unable to address the possible disenfranchisement of such voters by determining whether and applicable law has been applied properly or by gathering additional evidence that might be necessary to establish a ballot's validity.

12. St. Louis County, by contrast, suffers no harm by providing the requested information.

The data is neither burdensome to compile nor voluminous. It has likely already been compiled as part of the precinct reconciliation process or the county canvassing board procedures. st. Louis County has not indicated that providing the requested information would create any significant legal or logistical burden. Moreover, Plaintiff will be required to pay all costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, and electronically transmitting the copies of the data, pursuant to Minn. Stat. § 13.03, Subd. 3(c).

13. I was an attorney for Norm Coleman during the recount of the United States Senate race between Norm Coleman and Senator Al Franken, and resulting election contest trial, in November and December 2008. All of the data practices requests that our office has submitted on behalf of Emmer for Governor this year are identical to the data practices requests submitted by the Franken campaign and the Coleman campaign during the 2008 recount and election contest. To the best of my recollection, once the data requested of

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election officials was deemed to be public information by applicable governmental authorities in 2008, the information was promptly provided and I do not recall any election official taking two (2) weeks to provide the date after such time.

14. The data requested by our office on behalf of Emmer for Governor is necessary for the recount and/or to investigate and evaluate potential claims in any resulting election contest filed on behalf of Emmer for Governor or Dayton for Governor (an election contest may be initiated by any Minnesota voter on behalf of a losing candidate within seven (7) days after the results of an election are certified; the contest trial must commence three (3) weeks after filing a notice of contest).

15. In the 2008 recount and election contest, all data provided to the Franken campaign was also provided to the Coleman campaign, and vice versa. It is the position of Emmer for Governor that any requests by the Dayton for Governor campaign must also be promptly responded to by local election officials to the Dayton for Governor campaign (as well as the Emmer for Governor campaign).

16. Emmer for Governor served requests identical to those served on St. Louis County on all 87 counties in Minnesota. To date, most of the counties have responded positively, and many have already provided the requested information, or have committed to a specific date for production. For example, Otter Tail County provided all of the requested information on November 11, 2010. In addition, Brown County indicated that the requested information would be available for pickup on November 12,2010. In contrast, St. Louis County responded by unequivocally stating that it will not treat Emmer for Governor's requests as matters of priority, that it will attend to other matters before responding to the requests, and that it will not even address the requests for 14 days. A

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true and correct copy of St. Louis County's response to Plaintiff's requests is attached hereto as Exhibit E.

17. As a result of St. Louis County's response, Emmer for Governor will not learn if St.

Louis County intends to respond, and on what schedule, until after 14 days. Moreover, only after 14 days will St. Louis County disclose whether it disputes its obligation to provide the requested information. By the time that disclosure is made, valuable time will be lost for all those who are endeavoring to ensure that the outcome of this election is based on a full and complete record.

18. The public data requested by Emmer for Governor from St. Louis County is necessary for the recount of the 2010 gubernatorial election and/or to investigate and evaluate potential claims in any resulting election contest filed on behalf of either Emmer for Governor or Dayton for Governor. With respect to the recount, the requested information is necessary to verify, before the State Canvassing Board meets, that the number of votes certified by the State Canvassing Board is accurate. For this purpose, production of the election machine tapes from all Minnesota precincts is of the highest and most urgent priority.

19. With respect to potential election contests, Minnesota law requires that an election contest must be initiated by any Minnesota voter on behalf of a losing candidate within seven (7) days after the results of an election are certified. If an election is contested, the trial must be commenced within three (3) weeks after filing a notice of contest. To determine whether an election contest is necessary and, if so, prepare for a contest, Plaintiff must be able to review and analyze absentee ballot information, election day incident reports, and election-judge identities well in advance of the recount's completion. Access to this information will enable Plaintiff to evaluate potentially

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uncounted votes (absentee ballots) and potential election irregularities (incident reports)

as well as interview potential witnesses (election judges).

20. Given the expedited timelines for election contests under Minnesota law, as well as the

fact that Minnesota has over 4,000 election precincts (4,136 to be precise), time is of the

essence. Any delay in production of the requested information will prejudice Plaintiff's

ability to evaluate, monitor, and prepare a potential election contest regarding the 2010

gubernatorial election. As required by Minn. Stat. § 13.03, Subd. 3(c), Plaintiff is willing

to pay all actual costs of searching for and retrieving government data, including the cost

of employee time, and for making, certifying, and electronically transmitting the copies

of the data. Plaintiff is also willing to accept the requested data as it becomes available (a

"rolling production") if that would make the production easier.

21. To date, St. Louis County has failed to allow access to or produce the information set

forth in the requests or otherwise respond to Emmer for Governor's requests. Nor has St.

Louis County made any indication that provision of this information poses any significant

legal or logistical burdens.

22. St. Louis County's failure to provide the requested information has the effect of denying

representatives from Emmer for Governor the information to which the public is entitled

pursuant to the MGDP A.

FURTHER YOUR AFFIANT SA YETH NOT.

Subscribed and sworn to before me this r2 ... 1itrrday of November, 2010.

p~~8. t~

Notary Public 11:2J

. ~.

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·-


Attorneys at Law




November 3,2010





• Copies of election night machine tape results for all precincts within your county

• Copies of all election night summary statements/tally sheets (if any) for all hand-count precincts within your county (including tally sheets maintained by your offices)

• Copies of all records relating to security, location and access to ballots cast in your county as required to be maintained by your office under Minnesota

EXHIBIT A

Statutes Section 204C.28.

• Information relating to all revisions made by your county to results reported election night, including precinct name, specific revision made and the reason for the revision.

The foregoing data will not be used for purposes other than those pennitted under Minn. Stat. 201.091.


Sincerely,

Tony P. Trimble

Matthew W. Haapoja



This message sent to shc@mngop.com by chairman@mngop.Gom.


Suite 250

St. Paul, MN 55103

j powered by : !ElectionrmUmU i



Attorneys at Law




November 4, 2010



This correspondence a request for access to public data relating the 2010 general election in your jurisdiction under the Minnesota Government Data Practices Act ("MGDPA"), Minnesota Statutes, Chapter 13. As you know,Minnesota Statutes Section 15.17, the Official Records Act, requires all government entities to make and maintain all records that are necessary to a full and accurate knowledge of their official activities. Section 13.03, subdivision 1, of the MGDPA requires government entities to keep records that contain government data in a way (or ways) that makes the data easily accessible for convenient use.

v.,r e hereby request the following information immediately relative to the 2010 general election:

• Names of all individuals serving as election judges on election night for all precincts within your municipality and the precincts in which such individuals served

The foregoing data will not be used for purposes other than those permitted under Minn. Stat. )01.091.

Please provide this information via email to trimblelegals@earthlink.l1et or via facsimile to 952-797-5858. Due to time sensitivities, if you cannot provide this information electronically (email or facsimile), please contact Aaron

EXHlI3IT B

Cocking at 651-222-0022 (at RPM) or the undersigned at 952-797-7477 to arrange pick-up of the same. Thank you.

Sincerely,

Tony P. Trimble

Matthew W. Haapoja



This rnessage sent to shc@mngop.com by chairman@mngop.com.


Suite 250

si Paul, MN 55103

r' .. _ .. ~-, ., .... ""..... .--.~.- ~

i powered_by' i

iE.~.~~~o_n thii!MlIl



Attorneys at Law




November 4,2010



This correspondence a request for access to public data relating the 2010 general election in your jurisdiction under the Minnesota Government Data Practices Act ("MGDPA"), Minnesota Statutes, Chapter 13. As you know, Minnesota Statutes Section 15.17, the Official Records Act, requires all government entities to make and maintain all records that are necessary to a full and accurate knowledge of their official activities. Section 13.03, subdivision 1, of the MGDP A requires government entities to keep records that contain government data in a way (or ways) that makes the data easily accessible for convenient use.

This correspondence supplements our request from yesterday regarding absentee ballot information. Please disregard yesterday's request.


• Total number of rejected absentee ballots in your jurisdiction and the reasons for such rejections

• Total number of accepted absentee ballots in your jurisdiction

• Photocopies of all envelopes relating to accepted and rejected absentee ballots in your jurisdiction, including the name and address of the voter and the reasons for the rejection if applicable

• Names and addresses of all persons who applied for absentee ballots, whether or not absentee ballots were cast


• All information you have provided to the Dayton for Governor campaign or its counselor other representatives relative to absentee ballot applications, absentee ballots and/or absentee voters in your jurisdiction.

The foregoing data will not be used for purposes other than those permitted under Minn. Stat. 201.091. Please provide this information via email to trimhlelegals@earthIink.net or via facsimile to 952-797-5858. Due to time sensitivities, if you cannot provide this information electronically (email or facsimile), please contact Aaron Cocking at 651-222-0022 (at RPM) or the undersigned at 952-797-7477 to arrange pick-up of the same. Thank you.

Sincerely,

Tony P. Trimble

Matthew W. Haapoja





Suite 250

St. Paul, MN 55103



Attorneys at Law




November 4, 2010





• All election-day incident reports prepared by election judges and/or other election officials

The foregoing data will not be used for purposes other than those permitted under Minn. Stat. 201.091.


Sincerely,

Tony P. Trimble

Matthew W. Haapoja





Suite 250

St. Paul, MN 55103

i- .. powered by I ! Election dMiitl1

I _' __ ."", .• '."" __ ,_ "".__ __ ~J






Attorneys at Law

November 9,2010

VIA EMAIL ONLY

Re: Minnesota Government Data Practices Act Request


This office represents Emmer for Governor and the Republican Party of Minnesota ("RPM").

On November 3 and 4, 2010, my client requested access to public data relating to the 2010 general election in your jurisdiction under the Minnesota Government Data Practices Act ("MGDPA"), Minnesota Statutes, Chapter 13. Copies of my client's original MGDPA requests are attached to this letter.

As you know, Minnesota Statutes Section 13.03, subdivision 2, the Official Records Act, requires the responsible authority in every government entity to comply with MGDPA requests "in an appropriate and prompt manner."

However, to date we have not received a response from your office.

If your office does not provide the requested data to which my client is legally entitled by close of business on Thursday, November 11, 2010, we will immediately take any and all appropriate legal action under Minnesota Statutes Section 13.08.

Sincerely,

Tony P. Trimble Matthew W. Haapoja Cc: Name

____ County Attorney

EXHIBIT C

p- ...

loCKRIDGE ORINDAL NAUEN'

MINNEAl'OUS Suite 2200

100 Washington Avenue South Minneapolis, MN 55401-2179 T 612.339.6900

F 612.339.0981

WASHINGroN, D.C. Suite 210

415 Second Street, N.R Washington, DC 20002-4900 T 202.544.9840

F 202.544.9850

P.L.L.P.

Attorneys at Law

IU\UW .locklalU. com

Charles N. Nauen Direct: 612-596-4006 cnnauen@iocklaw.com REPLY TO MINNeAPOLIS

November 10, 2010

VIA E-MAIL

Re: URGENT - Minnesota Government Data Practices Act Request

Dear Local Election Official:

My office represents the Dayton Recount Fund in connection with the pending administrative recount in the 2010 gubernatorial election. I understand that, in the past several days, representatives of the Emmer campaign and/or the Republican Party of Minnesota (through Attorney Tony Trimble) have submitted requests for information to multiple jurisdictions pursuant to the Minnesota Government Data Practices Act.

We understand that the data requests submitted by Attorney Trimble are wide-ranging and burdensome data requests. However, we are in a position where we must remain informed about any such requests and receive copies of your responses and any data provided.

Accordingly, pursuant to that Act, we request that you provide us with the following:

• A copy of any Data Practices request(s) submitted to you by representatives of the Emmer campaign, the Republican Party, or any other entity or person else relating to the 2010 general election.

• A copy of any information provided pursuant to these requests.

We are prepared to pay reasonable costs for the collecting and copying of this data, as provided by the Act. To the extent possible, we prefer to receive this information inelectronic form, Please contact my colleague David J. ZoII (612-596-4028 or dizol1@locklaw.com) to make arrangements for payment and delivery of the information.

Please also consider this a continuing request throughout the period of the recount and provide us with copies of information responsive to any future Data Practices requests regarding the 2010 general election submitted by representatives of the Emmer campaign, the Republican Party, or anyone else throughout the period of the recount and election contest, if any.

EXHIBIT D

November 10, 2010 Page 2

Because this is a highly time-sensitive matter under Minnesota' s election laws, we request that any information already provided to Emmer campaign or the Republican Party be provided to us within two business days of this request. With respect to future requests, we would ask that you provide us such information simultaneously with the requesting party.

Thank you very much for your assistance and cooperation on this important matter.

Very truly yours,

Charles N. Nauen

c: Dayton Recount Fund David 1. Lillehaug Christopher A. Stafford William A. Gengler . David J. Zoll

Kevin Z. Gray County Administrator

Saint Louis County

Administration· 100 North Fifth Avenue West, Room 202· Duluth, MN 55802 Phone: (218) 726-2450 • Fax: (218) 726-2469 • www.co.st-Iouis.mn.us

November 10,2010

Tony P. Trimble

Matthew W. Haapoja Trimble & Associates, LTD.

10201 Wayzata Boulevard, Suite 130 Minneapolis, MN 55305

RE: DATA PRACTICES INFORMATION REQUEST

Dear Mr. Trimble and Mr. Haapoja,

The St. Louis County Administrator's Office has received your Data Practices Information Requests submitted on November 3, November 4, and again on November 9,2010 requesting the following information regarding the 2010 general election held on November 2:

• Copies of election night machine tape results for all precincts within your county.

• Copies of all election night summary statements/tally sheets (if any) for all hand-count precincts within your county (including tally sheets maintained by your offices).

• Copies of all records relating to security, location and access to ballots cast in your county as required to be maintained by your office under Minnesota Statutes Section 204C.28.

• Information relating to all revisions made by your county to results reported election night, including precinct name, specific revision made and the reason for revision.

• All polling rosters, voter sign-in sheets, and same-day registration sign-ins.

• Total number of rejected absentee ballots in your county and the reasons for such rejections.

• Total number of accepted absentee ballots in your county.

• Photocopies of all envelopes relating to accepted and rejected absentee ballots in your county or municipality (as applicable), including the name and address of the voter and the reasons for the rejection of the ballot.


EXHIBIT E


Page 2

Data Practices Information Request Trimble & Associates, LTD.

• All information you have provided to the Dayton for Governor Campaign or its counselor other representatives relative to absentee ballot applications, absentee ballots and/or absentee voters in your county.

• All election-day machine tapes prepared by election judges and/or other election officials.

• Names of all individuals serving as election judges on election night for all precincts within your municipality and the precincts in which such individuals served.

• All election-day incident reports prepared by election judges and/or other election officials.

• Names and addresses of all persons who applied for absentee ballots, whether or not absentee ballots were cast.

• All "Voucher Forms" and "Precinct Lists of Persons Vouching" as prepared/filled out on election day.

As you are aware, the St. Louis County Auditor's Office must accomplish a significant number of legal responsibilities associated with the 2010 General Election. Because of this, all of these requirements will be addressed prior to the dedication of staff and resources necessary to fulfill your request. We anticipate a response to your inquiry within fourteen (14) calendar days from the date of this letter. Should there be any problems in gathering the data you request, or a charge for the information, that will be communicated to you prior to proceeding with the request.

Please contact me at 726-2447 or at eckenbergg@co.st-louis.mn.us if you have additional questions.

Sincerely,

c:;ary 6cktnbtrg

Gary Eckenberg

Deputy St. Louis County Administrator

c: Kevin Z. Gray, County Administrator Donald Dicklich, County Auditor Patricia Stolee, Deputy County Auditor Melanie Ford, County Attorney

Barbara Russ, Assistant County Attorney


Emmer for Governor,

Case No. _


DISTRICT COURT



Plaintiff,

vs.


ORDER

Defendants.

This matter came before the Court on the Motion by Plaintiff for Injunctive Relief.

Appearances of counsel are noted in the record.

Based on all the files and proceedings herein, and the argument of counsel, and the Court

being duly advised in the premises, the Court makes the following:

Findings of Fact

1. Plaintiff Emmer for Governor ("Plaintiff') is theorganization through which Thomas

E. Emmer, Jr. conducted his candidacy for the Minnesota Governor's office in the

election held on November 2,2010.

2. Defendant St. Louis County is a political subdivision of the State of Minnesota. St.

Louis County administers elections pursuant to Minnesota election laws set forth

and is the principal county officer charged with duties relating to elections. Dicklich

within Minn. Stat. Ch. 200-211 C (2010) ("Minnesota Election Law")

3. Defendant Donald Dicklich ("Dicklich") is the County Auditor for St. Louis County

is the individual responsible for the collection, use, and dissemination of any set of

data related to the conduct of elections in St. Louis County pursuant to Minnesota

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3000843vi

Election Law and the Minnesota Government Data Practices Act, Minn. Stat. Ch. 13 (2010) ("MGDPA").

4. Defendant Gary Eckenberg ("Eckenberg") is the Deputy County Administrator for St.

Louis County. Eckenberg is responsible for the collection, use, and dissemination of any set of data related to the conduct of elections in St. Louis County pursuant to Minnesota Election Law and the MGDP A.

5. On November 2,2010, the State of Minnesota conducted an election for the office of Governor of Minnesota.

6. Interim vote totals published by Secretary of State's Office show that the two leading candidates in that election, Thomas E. Emmer, Jr. and Mark B. Dayton, are separated by less than one-half of one percent of the total votes cast for that office.

7. When the total votes separating the candidates are certified by the state canvassing board to be less than one-half of one percent of the total of all votes cast in the Minnesota gubernatorial election, Minnesota Election Law directs the Secretary of State to oversee a mandatory manual recount of all votes cast in the State for that office. Minn. Stat. § 204C.35, Subd. 1 (b)(I).

8. The Secretary of State has scheduled that recount to commence on November 29, 2010.

9. On November 3, 2010 and November 4, 2010, Matthew W. Haapoja ("Counsel"), in his capacity as counsel for Plaintiff sent a information requests to Dicklich requesting information pursuant to the MGDP A.

10. In the requests, Counsel asked that Dicklich produce election materials relative to the Minnesota general election which took place on November 2, 2010.

3000843vl

11. On November 9,2010, Counsel provided St. Louis County, through County Attorney Melanie Ford, with correspondence summarizing the previous requests and inquiring as to the status of the same.

12. Plaintiff has requested public information that has been collected and maintained by the Defendants. The requested information has not been classified so as to deny Plaintiff access by any statutory section, temporary classification, or provisions of Minnesota or federal law.

13. Plaintiff has not been provided access to or copies of the requested information.

14. Defendants' denial of Plaintiffs requests have prevented Plaintiff from developing a complete record upon which to enforce its rights under the canvass, recount and contest procedures as provided in Minnesota Election Law.

15. Plaintiff has satisfied all of the prerequisites for injunctive relief.

16. The preexisting relationship between the parties is based upon the Minnesota Government Data Practices Act (MGDP A) and sections of Minnesota Election Law. Under these provisions, Plaintiff has a right to access the data it has requested. The refusal of defendant to provide the data impermissibly alters the relationship between parties by infringing on clearly established rights under both Minnesota Election Law and the MGDP A.

17. The harm that Plaintiff would suffer absent injunctive relief far outweighs any harm to Defendant. Each day Plaintiff is without the requested information, Plaintiff is irreparably harmed in its efforts to ensure that each valid vote is properly counted and to prepare for the procedures that will decide this election. By contrast, the County of

3000843vl

St. Louis will suffer no harm from providing information that it must organize and maintain even had Plaintiff not requested such information.

18. Plaintiff is likely to prevail on the merits. The MGDPA creates a presumption that, unless otherwise provided by law, all government data are public. See Minn. Stat. § 13.03, subd 1.

19. Public Policy militates in favor of injunctive relief for numerous reasons. The MGDP A represents a fundamental commitment to making the operations of our public institutions open to the public, and the courts must construe the MGDP A in favor of public access. Plaintiff requests this data to help ensure that all valid votes are counted. The voters whose ballots may have been wrongfully rejected or were not properly counted, as well as the State of Minnesota, have an overriding interest in ensuring that all valid votes are counted.

20. The administrative burdens would be minimal. Plaintiff does not seek a remedy that would require significant Court administration. Governmental entities routinely provide information of this nature, and this request imposes no significant burden upon Defendants.

Conclusions of Law

1. The data requested by Plaintiff are public data, the production of which is required by theMGDPA.

2. Defendants' failure to produce data requested by Plaintiff is in violation of Minn.

Stat. § 13.03, subd. 3, and has prevented Plaintiff from receiving public data as required by Minnesota law.

3. Plaintiff has met all of the requirements of, and is entitled to receive, an injunction as follows.

Order

1. Plaintiff has the right to obtain or access all public data requested, according to the provisions of the MGDPA, including all machine tapes, summary statements, ballot security information, revisions to reported election night results, absentee ballot information, voter registration information, names of election judges, incident reports and information provided to or for the benefit of the Dayton for Governor campaign.

2. Defendants, and all persons acting in concert with them, are hereby enjoined from failing to provide the public data Plaintiff has requested under the MGPDA.

3. Defendants, and all persons acting in concert with them, are hereby ordered to produce the public data requested by Plaintiff on a rolling basis at a fee fairly representing Defendants' reasonable production costs, with all public data requested by Plaintiff to be disclosed within 5 business days.

4. This Order shall be immediately effective.

5. Service of this Order on Defendants may be made by delivery of facsimile transmission to the Office of the S1. Louis County Attorney and any counsel of record in this matter for any defendant, and shall be deemed sufficient service for all purposes.

Judge of District Court

Dated , 2010

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20101112STLOUISCOUNTY

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