ORDER
IT IS ORDERED:

That having been found to have violated Minn. Stat. 2113.02, Respondent
Better Ballot Campaign shall pay a civil penalty of $5,000 by January 1,
2010.

Dated: November 30, 2009

sIKathleen D. Sheehy
KATHLEEN D. SHEEHY
Presiding Administrative Law Judge

s/Cheryl LeClair?Sommer
CHERYL 
Administrative Law Judge

s/Barbara L. Neilson
BARBARA L. NEILSON
Administrative Law Judge

Reported: Digitally recorded, no transcript prepared.

NOTICE

This is the ?nal decision in this case, as provided in Minn. Stat. subd.
5. A party aggrieved by this decision may seek judicial review as provided in Minn. Stat.
14.63 to 14.69.

MEMORANDUM

There are two issues in this case. The ?rst is whether the St. Paul BBC
knowingly and falsely claimed that the ballot question was endorsed by organizations
including the Minnesota DFL, the Minnesota League of Women Voters, and the St. Paul
League of Women Voters. The second is whether the St. Paul BBC claimed

 

3? The check should be made payable to ?Treasurer, State of Minnesota" and sent to the Of?ce of
Administrative Hearings, PO. Box 64620. St. Paul MN 55164-0620.

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endorsement by several individuals?President Obama, Sen. John McCain, Ralph
Nader. and McKinney?without obtaining their written permission.

With regard to the claim of false endorsement by the organizations. the
Respondent?s evidence focused on the extent to which these organizations have
indicated support for IRV. It is not disputed that the Minnesota DFL generally supports
the use of in state and local elections and that this position is included in the DFL
Action Agenda. Nor is it disputed that the League of Women Voters (both the
Minnesota League and the St. Paul affiliate) has found IRV to be an acceptable voting
system, along with plurality voting. The issue here is whether the St. Paul BBC properly,
used these general statements of support for in claiming in its literature that the
DFL and the League of Women Voters ?endorsed? the ballot question in St. Paul.

The Respondent argues that there is no legal or factual distinction between
?support" for IRV and ?endorsement? of a ballot question. It contends that the two words
are interchangeable and that it is free to call the general statements of support by these
organizations an ?endorsement? of the ballot question.?

As a legal matter. the statute at hand provides that a person may not ?knowingly
make, directly or indirectly. a false claim stating or implying that a candidate or ballot
question has the support or endorsement of a major political party or party unit or of an
organization."33 The statute by its terms expressly differentiates between ?support? and
"endorsement.? In interpreting this language, the Minnesota Supreme Court has
recognized that there is a distinction between the words ?support? and ?endorsement?
In Schmitt v. McLaughlin, a candidate who was not endorsed by the DFL party used the
initials on advertisements and lawn signs.39 The Court concluded that the ?use of
the initials would imply to the average voter that [the candidate] had the
endorsement or, at the very least. the support of the DFL party.?4? This interpretation is
consistent with the canon of statutory construction requiring that meaning be given if
possible to each word in a statute.?1 Moreover, the Court indicated that the
determination whether a person has the endorsement or support of a political party is a
matter that can be objectively determined.?

As a factual matter. the record re?ects that the organizations themselves have
speci?c procedures for persons wishing to obtain statements of support or

 

?7 The Respondent provided testimony to this effect and cites to Buckley Valeo(1976). for the proposition that these words are synonymous. ln Buckley. the United States Supreme
Court held. among other things. that the independent expenditure provisions of the Federal Election
Campaign Act were unconstitutional. The cited footnote explains that communications expressly
advocating the election or defeat of a candidate for public of?ce were subject to this limitation. The panel
does not believe Buckley sheds any light on the issues raised in this case. -

3? Minn. Stat. 2113.02.

3" 275 587 (Minn. 1979).

4? Id.. 275 at 591 (emphasis added).

?1 Minn. Stat. 645.16 (?Every law shall be construed. If possible, to give effect to all its provisions?);
Minni Stat. 645.17(2) (it is presumed that ?the legislature intends the entire statute to be effective and
certa n" .

?2 275 N.w.2d at 591.

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endorsement. The DFL party permits endorsements or candidates only by a 60%
affirmative vote of delegates present and voting, but no convention representing a
geographical area less than the area competent to elect the public official may endorse
a candidate.43 The position on ballot questions is similar. The process for taking
a formal DFL Party position on any ballot question and, if desired, placing the question
on the of?cial DFL Sample Ballot, requires a 60% af?rmative vote, and the body with
authority to take an official stand on that question is the party unit having the smallest
jurisdictionthat includes the entire electoral district that will vote on the ballot question.44
In this case, that means that only the St. Paul DFL had the authority to take a position
on the St. Paul ballot question. The League of Women Voters has an official position
statement, developed in 2005 and unchanged since then, that supports both the use of
in state and local single?seat elections, and the continued use of a plurality voting
system.45 Neither the Minnesota League of Women Voters nor the St. Paul League of
Women Voters has specifically endorsed the use of in lieu of plurality voting in any
election.

The Respondent argues that it could properly characterize the general
statementsof support by these?organi'zations: as an ?endorsement,? because based on
Kennedy v. Voss,?6 even ?extreme and illogical inferences" based upon accurate
statements of fact are not actionable as false statements in campaign literature. That
case involved an allegedly false statement regarding a candidate's voting record, and
the violation alleged was of Minn. Stat. 210A.04, subd.1, a predecessor of Minn. Stat.
2118.06. Claims asserted under 2118.06 are subject to a different and higher
standard of proof. As noted by the Minnesota Supreme Court, the support or
endorsement of an organization, when challenged under 2118.02, is a matter that can
be objectively determined. In addition, claims of ignorance about the permissible limits
of claiming endorsements, particularly with regard to the implication of endorsement by
the DFL party, areviewed with some skepticism.47

The record is clear in this case that the Respondents were well aware of the
official positions of these organizations. The Respondent successfully obtained the
endorsement of the St. Paul DFL party in 2007; however, the presentation of the ballot
question to voters was delayed due to the litigation over IRV in Minneapolis. When that
matter was resolved,48 the Respondent again sought the endorsement of the St. Paul
this time, however, it failed to obtain the requisite number of votes. This was the
second major campaign spearheaded by Ms Massey, who previously directedthe
successful, ballot initiativein Minneapolis. She. ?waspersognally involved in the BBC's
unSUCCes-sful effort to obtain the endorsement'in St; Paul, and her testimony that she

 

Ex. R-ni at Art. 3, Section 4. subsection H.
45 Id. Section 15.
Ex. R-7.
?5 304 299 (Minn. 1931).
47 See In the Matter of Ryan, 303 462, 468 (Minn. 1981); In the Matter of Daugherty v. Hilary, 344
826, 832 (Minn. 1984).
43 See Minnesota Voters Alliance v. City of Minneapolis, 766 683 (Minn. 2009) (rejecting a
number of constitutional challenges to as adopted by ordinance in Minneapolis).

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was__u_naware.that she could. not claim endorsement by'the er the ?Minnesota
tenet credible;

Likewise the Respondent was welL; aware of the positipn of the League of
Women Voters; it worked with League representatives to put the ?Vote Yes? questIon on
the ballot in 2007 and it participated in a forum shortly before the recent election in
which the League?s official poSition was read before the commencement of a debate
between the Respondent and Complainant Chuck Repke. The argument that the
Respondent believed it could claim endorsement" of the ballot question by the League
based On either a partial reading of the League' position, or on personal expressions of
support by individual League members or officers is lacking In credibility

With regard to the claimed endorsements by individuals, the Respondent admits
that it made no effort to obtain written permission from President Obama, Sen. McCain
(the endorsed Republican candidate for president in the last election), Ralph Nader (an
independent, endorsed Reform Party, and endorsed Green Party candidate for
president in the past), or McKinney (an endorsed Green Party candidate for
president in the last election). The Respondent contends that it would be ?absurd? to
require that national political leaders, who have taken public positions on specific
Issues, must provide written permission to use their names in support of local ballot
initiatives addressing those issues. In addition, Ms. Massey testi?ed that she was
unaware that it was necessary to obtain written permission before using the names of
individuals in its literature.

The statute unequivocally provides that person or candidate may not state in
written campaign material that the candidate or ballot question has the support or
endorsement of an individual without first getting written permission from the individual
to do so." 9There is no exception for national political leaders. As with support claimed
from organizations, it should be an easy matter to objectively determine whether an
individual has provided permission to use that lndividual?s name in support of a
candidate or ballot question. The Respondent could truthfully have said in its literature,
without obtaining written permission that as a state legislator in 2002, President Obama
introduced legislation that would have permitted municipalitiess to adopt instant runoff
voting for the positions of mayor, city clerk, and city treasurer50 It could truthfully have
said, without obtaining written permission, that Sen McCain, in 2002, supported an IRV
ballot question in Alaska; or that Ralph Nader said in a debate in 2008 that IRV was
something that should be examined. But these are far different messages than saying,
without written permission, that the St. Paul ballot question was "endOrsed" by President
Obama, Sen. McCain, and the others.

The Respondent's testimony that it was not aware that Written permission??Was?
required from individuals is contradicted by its acknowledgment that it in fact obtained
written permission from most if not all of the state and local elected officials, former
state and local officials, and other business and community leaders whose names were

 

?9 5E)Minn. Stat. 2118.02
R- 23.

14

used in the mailings. it specifically obtained written permission from Brian Melendez,
the chair of the Minnesota DFL, to say that he personally supported the ballot question.
In addition, the Respondent?s web site was designed to incorporate a mechanism by
which individuals could provide electronic written permission to use their names as a
public endorsement of ?advanced voting methods like instant Runoff Voting."51 To the
extent that the Respondent is relying on testimony that it was not aware of the
requirement. to obtain written permission from individuals, the panel finds that this
credible.

Accordingly, the panel has concluded that the-Respondent made knowingly false
claims that the Minnesota DFLand the League of Women Voters ?endorsed? the St.
Paul ballot question and that it failed to obtain written permission from the national
political?gures before using their names as of the ballot question, in
violation of Minn. Stat. 2118.02. The panel has concluded that these violations, which
[were reflected in approximately 40,000 pieces of campaign literature, Were multiple and
deliberate; They were made despite the clarity of the statutory prohibitions, and the
Respondent remains completely unapologetic. The timing of these mailings made it
difficult for opponents to respond before the election andc?reated an unfair advantage.
These false claims of support or endorsement likely influenced some voters, but the
impact on the election cannot be quanti?ed on this record. Under all the circumstances
the panel believes a ?ne in the amount of $5,000 is the appropriate penalty.

K.D.S., B.L.N., C.L.S.

 

5? Ex. 03.

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