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An Albert Lea lawyer will argue before the Minnesota Court of Appeals next week in support of a Rice County lawsuit that questions the use of modems he says are used in transferring early election results from county officials to the Minnesota Secretary of State.

According to a press release from lawyer Matt Benda, the Minnesota Legislature in 2005 passed a law prohibiting use of wireless communications in voting systems. Though the law provides for a limited use exception, that is only to transfer election data from individual precincts to the county election system.

“The limited authority allowing modem usage ends once election results are electronically transmitted from the precinct to the county election system,” said Benda, of Peterson, Kolker, Haedt & Benda LTD in Albert Lea. “Many Minnesota counties, including Rice County, then take the additional step of electronically transferring the early election data to the Secretary of State. Our lawsuit requests that the court prohibit the use of modems for this early look process.”

Benda argues that once counties transmit the early, unofficial election results to the Secretary of State, the results are then made available to the public and media outlets.

He argued they also found that the modems inside the election equipment are not examined or certified by the Secretary of State. The lawsuit requests the court review to determine if the modems should be subject to the same examination and certification requirements as the rest of the voting equipment.

Benda said the lawsuit came about as a result of various data requests, some by himself regarding election equipment in Rice County, as well as his co-plaintiff, Kathleen Hagen ahead of the special election in May 2022 for Minnesota’s 1st District congressional seat. The lawsuit lists Benda for Common-sense and Hagen as the plaintiffs.

“Without extraordinary efforts to create sunshine, the electronic vote counting that occurs behind the curtain of secrecy will remain in darkness,” Benda said. “If the public is not provided with access to review and audit the election process, distrust may well continue to erode confidence in the process. The secrecy of voting must be preserved, but after the election is complete, the public deserves the right to open the ballot box, (now machine), and scrutinize the process.”

According to court documents, Denise Anderson, director of the Rice County property tax and elections department, said Rice County is one of six counties in the state that utilizes ES&S voting equipment with the option to use a modem to transmit unofficial election results after the polls are officially closed and voting has ended. She said the modem is not part of counting ballots and noted “the physical ballots and printed results tapes are always protected and are not capable of being altered by the modem.”

A three-judge panel has been assigned by the Court of Appeals to hear arguments and issue a written opinion on the case.

The case had previously been dismissed by District Court Judge Carol M. Hanks.