Minnesota Voters Alliance et al v. Walz et al
ORDER denying 8 Motion for Preliminary Injunction. (Written Opinion) Signed by Judge Patrick J. Schiltz on 10/2/2020. (CLG)
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MINNESOTA VOTERS ALLIANCE;
ANDREW CILEK; KIM CROCKETT;
CRAIG ANDERSON; YVONNE
HUNDSHAMER; and CRAIG JONES,
Case No. 20‐CV‐1688 (PJS/ECW)
TIM WALZ, in his official capacity as
Governor of Minnesota; STEVE SIMON,
in his official capacity as Secretary of
State of Minnesota; MARK V. CHAPIN,
in his official capacity as Hennepin
County Auditor; CHRISTOPHER A.
SAMUEL, in his official capacity as
Ramsey County Auditor; KEITH
ELLISON, in his official capacity as
Attorney General of Minnesota; MIKE
FREEMAN, in his official capacity as
Hennepin County Attorney; and JOHN
CHOI, in his official capacity as Ramsey
Erick G. Kaardal, MOHRMAN, KAARDAL & ERICKSON, P.A., for plaintiffs.
Elizabeth C. Kramer, Megan J. McKenzie, and Kevin A. Finnerty, MINNESOTA
ATTORNEY GENERAL’S OFFICE, for defendants Tim Walz, Steve Simon, and
Kelly K. Pierce and Jeffrey M. Wojciechowski, HENNEPIN COUNTY
ATTORNEY’S OFFICE, for defendants Mike Freeman and Mark V. Chapin.
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Robert B. Roche, RAMSEY COUNTY ATTORNEY’S OFFICE, for defendants
John Choi and Christopher A. Samuel.
On July 22, 2020, Governor Tim Walz issued Executive Order 20‐81, which
requires Minnesotans to wear face coverings in indoor public settings in order to control
the spread of COVID‐19. Plaintiffs—the Minnesota Voters Alliance and five political
activists—have brought this action against Governor Walz and other public officials1 to
challenge the legality of Executive Order 20‐81. Plaintiffs have framed this action as
primarily relating to the impact of Executive Order 20‐81 on their right to vote in the
upcoming election. In fact, though, plaintiffs argue that Executive Order 20‐81 is
invalid in its entirety—i.e., that Governor Walz does not have authority to order any
person to wear a face covering in any indoor public setting. Indeed, plaintiffs go even
further: Plaintiffs argue that it is illegal for any person to choose to wear a face covering
in a public place for the purpose of preventing the spread of COVID‐19.
This matter is before the Court on plaintiffs’ motion for a preliminary injunction.
The Court held a lengthy hearing on that motion on September 23, 2020. For the
reasons that follow, plaintiffs’ motion is denied.
Plaintiffs have sued Governor Walz, Secretary of State Steve Simon, and
Attorney General Keith Ellison (“the State defendants”); Hennepin County Attorney
Mike Freeman and Hennepin County Auditor Mark Chapin (“the Hennepin
defendants”); and Ramsey County Attorney John Choi and Ramsey County Auditor
Christopher Samuel (“the Ramsey defendants”).
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A. The COVID‐19 Pandemic
COVID‐19 is a deadly disease caused by a virus that is easily spread between
people through respiratory droplets produced when an infected person coughs,
sneezes, or talks. Kramer Decl. Ex. 2. It appears that the virus may also be transmitted
via respiratory microdroplets that can travel in the air for tens of meters and remain
airborne for hours. Id. Exs. 3, 4. As a result, COVID‐19 is easily transmitted in indoor
environments, particularly if those environments are crowded or lack adequate
ventilation. Id. Ex. 3. The virus may be transmitted by infected people who have no
symptoms and do not even know that they are infected. Id. Exs. 5, 8.
On March 11, 2020, the World Health Organization declared a global pandemic.
Id. Ex. 6. Since the start of the pandemic, over 7.2 million cases of COVID‐19 in the
United States have been reported to the Centers for Disease Control and Prevention
(“CDC”) and over 206,000 Americans have died, including over 2,000 Minnesotans.2
There is currently no cure and no vaccine. Id. Exs. 1, 5. In response to this public‐health
crisis, the President declared a national emergency on March 13, 2020 and later
See Centers for Disease Control and Prevention, at
www.cdc.gov/coronavirus/2019‐ncov/cases‐updates/cases‐in‐us.html (last visited Oct. 2,
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approved major disaster declarations in all 50 states—the first time a president had
done so in the history of the United States. Id. Exs. 9, 10.
B. Face Coverings
Federal and state health officials recommend face coverings to slow the spread of
COVID‐19. According to CDC officials, “the more individuals wear cloth face
coverings in public places where they may be close together, the more the entire
community is protected.” Id. Ex. 12. Recent studies have found that face‐covering
mandates are associated with large declines in the growth rate of COVID‐19 infections
and fatalities. Id. Exs. 21, 22, 24. One study estimated that a nationwide mandate
would significantly benefit the economy by substituting a mask mandate for renewed
lockdowns that would subtract nearly 5% from GDP. Id. Ex. 24. Projections by the
University of Washington indicate that universal use of face coverings would save
thousands of lives in Minnesota. Id. Ex. 23.
It is important to stress that plaintiffs do not deny any of this. Plaintiffs do not
deny the existence of COVID‐19, or that it is a dangerous disease, or that it is easily
spread (including by people who do not know that they are infected), or that face
coverings slow its spread and thus save lives. To the contrary, plaintiffs emphasize that
“[n]o one in this case is saying that mask wearing isn’t a good thing.” ECF No. 1 at 1–2.
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C. Executive Order 20‐81
On March 13, 2020, the same day that the President declared a national
emergency, Governor Walz declared a peacetime emergency in Minnesota. See
Executive Order 20‐01; Minn. Stat. § 12.31, subd. 2(a). Among the actions that Governor
Walz has taken pursuant to his emergency powers is issuing Executive Order 20‐81
(“EO 20‐81”), which requires Minnesotans to wear face coverings while present in
indoor businesses and public indoor spaces and while waiting outdoors to enter an
indoor business or public indoor space. Am. Compl. Ex. 1 [hereinafter “EO 20‐81”]
¶ 9(a). Certain individuals are exempt from the mandate, including individuals with
physical or mental conditions that make it unreasonable for them to wear a face
covering, workers for whom a face covering would create a job hazard, and children
under the age of six. EO 20‐81 ¶ 8. An individual who willfully violates EO 20‐81 is
guilty of a petty misdemeanor. EO 20‐81 ¶ 20(a).
A. Standard of Review
In reviewing a motion for a preliminary injunction, a court must consider four
factors: (1) the movant’s likelihood of success on the merits; (2) the threat of irreparable
harm to the movant if the injunction is not granted; (3) the balance between that harm
and the harm that granting the injunction will inflict on the other parties; and (4) the
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public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en
banc). “A preliminary injunction is an extraordinary remedy, and the burden of
establishing the propriety of an injunction is on the movant.” Watkins Inc. v. Lewis, 346
F.3d 841, 844 (8th Cir. 2003) (internal citation omitted).
B. Likelihood of Success
The main thrust of plaintiffs’ amended complaint is that it is impossible for
anyone to enter an indoor public setting in Minnesota without committing a crime. On
the one hand, EO 20‐81 makes it unlawful not to wear a face covering in an indoor
public setting. On the other hand, according to plaintiffs, a Minnesota statute makes it
unlawful to wear a face covering in any public place, including any indoor public
setting. Specifically, Minn. Stat. § 609.735 provides:
A person whose identity is concealed by the person in
a public place by means of a robe, mask, or other disguise,
unless based on religious beliefs, or incidental to
amusement, entertainment, protection from weather, or
medical treatment, is guilty of a misdemeanor.
Because EO 20‐81 and § 609.735 are in direct conflict, plaintiffs argue, they cannot
enter an indoor public place—such as a polling place, or a meeting hall, or even a
grocery store—without committing a crime. As a result, plaintiffs contend that they are
chilled from engaging in political activities that are protected by the First Amendment,
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such as voting in person, campaigning in public, and associating with others in indoor
Plaintiffs also allege that EO 20‐81, in combination with guidance from the
Secretary of State concerning how to implement EO 20‐81 at polling places, violates the
Elections Clause in Article I, § 4 of the United States Constitution. Plaintiffs further
allege that EO 20‐81, standing alone, violates the First Amendment and various
provisions of the Minnesota Constitution. Before addressing the merits of plaintiffs’
claims, the Court must address a number of thorny jurisdictional issues.
1. Jurisdictional Issues
Defendants argue that plaintiffs are unlikely to prevail in this litigation because
they lack standing. “Standing to sue is a doctrine rooted in the traditional
understanding of a case or controversy.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016). Standing consists of three elements: “[(1)] an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Id. “To establish injury in fact, a plaintiff
must show that he or she suffered ‘an invasion of a legally protected interest’ that is
‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”
Id. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). The plaintiff bears
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the burden of establishing standing and must clearly allege facts demonstrating each
element. Id. at 1547; Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014).
i. Ramsey Defendants
Under Minnesota law, county attorneys “shall . . . prosecute felonies . . . and, to
the extent prescribed by law, gross misdemeanors, misdemeanors, petty misdemeanors,
and violations of municipal ordinances, charter provisions and rules or regulations[.]”
Minn. Stat. § 388.051, subd. 1(3); see also Minn. Stat. § 484.87, subd. 3 (“Except as
provided in subdivision 2 and as otherwise provided by law, violations of state law that
are petty misdemeanors or misdemeanors must be prosecuted by the attorney of the
statutory or home rule charter city where the violation is alleged to have occurred, if the
city has a population greater than 600.”). As noted, a violation of § 609.735 is a
misdemeanor, and a violation of EO 20‐81 is a petty misdemeanor.
The Ramsey defendants argue that, because state law does not give the Ramsey
County Attorney authority to prosecute these offenses, plaintiffs’ alleged injuries are
not traceable to him, nor would plaintiffs’ injuries be redressed by a favorable judicial
decision on any claims against him.3 See Dig. Recognition Network, Inc. v. Hutchinson, 803
The Hennepin defendants do not argue that the Hennepin County Attorney
lacks authority to prosecute non‐felony offenses. At oral argument, defendants
explained that, unlike Ramsey County, Hennepin County contains unincorporated
areas in which there is no city attorney available to prosecute non‐felony offenses, and
accordingly the Hennepin County Attorney has some authority to prosecute such
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F.3d 952, 957–58 (8th Cir. 2015) (“When a plaintiff brings a pre‐enforcement challenge to
the constitutionality of a particular statutory provision, the causation element of
standing requires the named defendants to possess authority to enforce the complained‐
of provision.” (cleaned up)).
In response, plaintiffs do not point to any provision of state law granting the
Ramsey County Attorney authority to prosecute misdemeanors under § 609.735 or
petty misdemeanors under EO 20‐81. Instead, plaintiffs cite State v. Lemmer, 736 N.W.2d
650 (Minn. 2007), which states that “the county attorney acts as the attorney for the state
in all criminal matters within the county and has no authority to act in civil cases, such
as implied consent proceedings, in which the state is a party.” Id. at 660. But Lemmer
had nothing to do with the allocation of prosecutorial authority between county and
city attorneys; indeed, later in the same paragraph, Lemmer cites § 388.051 and notes that
county attorneys’ duties “include prosecuting felonies, and to the extent prescribed by law,
gross misdemeanors, misdemeanors, and petty misdemeanors.” Id. (emphasis added).
At oral argument, plaintiffs pointed out that county attorneys have civil‐
enforcement powers under EO 20‐81. But the provision that plaintiffs cited addresses
the liability of businesses, not individuals. EO 20‐81 ¶ 20(b)(ii). Nowhere in plaintiffs’
amended complaint or briefs does any plaintiff contend that the plaintiff is a business or
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otherwise subject to EO 20‐81’s business provisions. Because plaintiffs have failed to
meet their burden to show traceability and redressability as against the Ramsey County
Attorney, the Court finds that plaintiffs are unlikely to prevail on any claims against
him. See Dig. Recognition Network, Inc., 803 F.3d at 958 (“The redressability prong is not
met when a plaintiff seeks relief against a defendant with no power to enforce a
challenged statute.” (citation and quotation marks omitted)).
With respect to the Ramsey County Auditor, the Ramsey defendants similarly
argue that there is no law giving him the authority to prosecute offenses under either
§ 609.735 or EO 20‐81. Plaintiffs point to a July 22 guidance memorandum issued by the
Secretary of State to county auditors and election officials concerning the impact of
EO 20‐81 on voting in Minnesota. Am. Compl. Ex. 2. The Secretary of State issued the
guidance in response to questions concerning how to handle compliance with EO 20‐81
in polling places. Am. Compl. Ex. 2. The guidance recommends that, if a voter enters a
polling place without a face covering, (1) an election official should inform the voter of
the face‐covering requirement and offer the voter a disposable mask; (2) if the voter
refuses to wear a face covering, the voter should be offered the opportunity for outdoor
curbside voting; and (3) if the voter insists on voting inside the polling place without a
face covering, the voter should be permitted to do so after again being informed that
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face coverings are required and that the voter’s refusal to comply with that requirement
will be recorded and “reported to the appropriate authorities.” Am. Compl. Ex. 2.
This guidance was issued to county auditors and election officials, but it does not
purport to be binding; rather, it is characterized as “guidance that we hope is helpful as
you work with your municipalities on polling place procedures.” Am. Compl. Ex. 2.
Nor does this guidance vest county auditors with any authority to prosecute violations
of EO 20‐81; instead, it simply recommends that the auditors advise election officials to
report any violations to the “appropriate authorities.” Am. Compl. Ex. 2. It therefore
appears that plaintiffs do not have standing to pursue any claims against the Ramsey
ii. State and Hennepin Defendants
The State and Hennepin defendants argue that plaintiffs do not have standing
because they have failed to plead a particularized injury; instead, the injury that
plaintiffs identify (being subject to the allegedly conflicting dictates of § 609.735 and EO
20‐81) is suffered by all Minnesotans. The cases on which defendants rely, however, do
not hold that if a government action violates the rights of all citizens, no citizen has
The Hennepin defendants did not raise this argument with respect to the
Hennepin County Auditor, and the Court does not know whether the authority of the
Hennepin County Auditor differs from the authority of the Ramsey County Auditor. If
the two auditors are similarly situated, plaintiffs would not appear to have standing to
pursue claims against the Hennepin County Auditor.
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standing to challenge that action in federal court. Instead, those cases involve attempts
by a plaintiff to vindicate a generalized, abstract interest in the proper application of the
law. See, e.g., Lance v. Coffman, 549 U.S. 437, 441–42 (2007) (plaintiffs lacked standing to
challenge judicial redistricting because “[t]he only injury plaintiffs allege is that the
law—specifically the Elections Clause—has not been followed”); see also FEC v. Akins,
524 U.S. 11, 23 (1998) (“The kind of judicial language to which the FEC points, however,
invariably appears in cases where the harm at issue is not only widely shared, but is
also of an abstract and indefinite nature—for example, harm to the ‘common concern
for obedience to law.’” (quoting L. Singer & Sons v. Union Pac. R., 311 U.S. 295, 303
Here, by contrast, plaintiffs allege an injury personal to them. Specifically, they
allege that they want to engage in political activities in indoor public settings but are
chilled from doing so. This is a sufficiently individual and particularized injury, at least
insofar as plaintiffs’ claims rest on the alleged conflict between § 609.735 and EO 20‐81.
See Susan B. Anthony List, 573 U.S. at 159 (“a plaintiff satisfies the injury‐in‐fact
requirement where he alleges an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder” (citation and quotation marks omitted));
Akins, 524 U.S. at 24 (“Often the fact that an interest is abstract and the fact that it is
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widely shared go hand in hand. But their association is not invariable, and where a
harm is concrete, though widely shared, the Court has found ‘injury in fact.’”).
With respect to plaintiffs’ standalone challenges to the validity of EO 20‐81,
however, their allegations appear insufficient to establish an injury in fact. The
amended complaint alleges that plaintiffs want the freedom to choose whether to wear
a mask, Am. Compl. ¶¶ 3, 30, that they intend to vote and engage in other political
activities either wearing or not wearing a mask, Am. Compl. ¶ 18, and that they have “a
right to protect themselves by wearing a mask and a right to politically protest the
government’s pandemic response by not wearing a mask,” Am. Compl. ¶ 4. As an
aside, the Court notes that plaintiffs’ claims are inconsistent with some of the major
premises of their lawsuit. Plaintiffs strenuously argue that § 609.735 makes it unlawful
to wear a mask in a public place, and that wearing a mask to slow the spread of COVID‐
19 does not fit within the “medical treatment” exception to the statute. Plaintiffs further
argue that EO‐81 is invalid because an executive order cannot conflict with a valid
statute. If plaintiffs are correct, they do not have the right to “choose” whether or not to
wear a mask in a public place; § 609.735 bars them from doing so.
In any event, the amended complaint stops short of alleging that any individual
plaintiff wants or intends to violate EO 20‐81 by not wearing a face covering when
EO 20‐81 would require them to do so. Again, plaintiffs bear the burden of clearly
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alleging facts demonstrating each element of standing, Spokeo, 136 S. Ct. at 1547, and
“[e]ach plaintiff must establish standing for each form of relief sought,” Miller v.
Thurston, 967 F.3d 727, 734 (8th Cir. 2020). As no plaintiff has clearly “allege[d] an
intention to engage in a course of conduct arguably . . . proscribed by” EO 20‐81, Susan
B. Anthony List, 573 U.S. at 159 (citation and quotation marks omitted), no plaintiff
appears to have standing to challenge the validity of EO 20‐81 in its own right.5
The State and Hennepin defendants also argue that plaintiffs’ alleged future
injuries are too speculative to establish standing. See Clapper v. Amnesty Int’l, USA, 568
U.S. 398, 409 (2013) (“we have repeatedly reiterated that threatened injury must be
certainly impending to constitute injury in fact, and that allegations of possible future
injury are not sufficient” (cleaned up)). Relatedly, the State and Hennepin defendants
argue that plaintiffs face no risk of prosecution from them and therefore plaintiffs’
injuries are not “fairly traceable” to them.
With respect to the Secretary of State: The only alleged connection between the
Secretary of State and plaintiffs’ alleged injury is the July 22 guidance discussed above.
The guidance, however, is simply that—guidance—and plaintiffs do not point to any
provision in any law granting the Secretary of State any authority to prosecute
This argument would appear to preclude plaintiffs from establishing standing
with respect to such claims against the Ramsey defendants as well. See Dunbar v. Wells
Fargo Bank, N.A., 709 F.3d 1254, 1256 n.4 (8th Cir. 2013) (federal courts have an
independent obligation to determine whether subject‐matter jurisdiction exists).
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violations of either § 609.735 or EO 20‐81. It therefore appears that plaintiffs lack
standing to pursue claims against the Secretary of State.6
With respect to the remaining State and Hennepin defendants: “The Supreme
Court has repeatedly found that plaintiffs have standing to bring pre‐enforcement First
Amendment challenges to criminal statutes, even when those statutes have never been
enforced.” 281 Care Comm. v. Arneson, 638 F.3d 621, 628 (8th Cir. 2011). “It is only
evidence—via official policy or a long history of disuse—that authorities actually reject
a statute that undermines its chilling effect.” Id.; see also UFCW Int’l Union v. IBP, Inc.,
857 F.2d 422, 428 (8th Cir. 1988) (“Where plaintiffs allege an intention to engage in a
For similar reasons, the Secretary of State is likely entitled to Eleventh
Amendment immunity. See Ex parte Young, 209 U.S. 123, 157 (1908) (for the Ex parte
Young exception to Eleventh Amendment immunity to apply, the state official must
have “some connection” to the challenged law); see also Calzone v. Hawley, 866 F.3d 866,
869 (8th Cir. 2017) (noting that, in cases against state officials, the standing and Eleventh
Amendment issues are similar).
The Court does not read Calzone or Missouri Protection & Advocacy Services, Inc. v.
Carnahan, 499 F.3d 803 (8th Cir. 2007) to the contrary. In Calzone, the Eighth Circuit
found that the superintendent of the state highway patrol had a sufficient connection to
an allegedly unconstitutional search policy because she had promulgated the policy
pursuant to her authority to enforce a state highway regulation. Calzone, 866 F.3d
at 870. In Missouri Protection & Advocacy Services, the Eighth Circuit held that the
Missouri secretary of state had a sufficient connection to the enforcement of a law
disqualifying certain persons from voting partly because state law obligated the
secretary of state to send local election authorities the names of persons ineligible to
vote under the law. 499 F.3d at 807. Here, by contrast, the Secretary of State simply
provided guidance in response to questions from local election officials concerning the
effect of EO 20‐81 on polling places; there is no law formally connecting the Secretary to
the enforcement of EO 20‐81.
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course of conduct arguably affected with a constitutional interest which is clearly
proscribed by statute, courts have found standing to challenge the statute, even absent a
specific threat of enforcement.”).
It is true that EO 20‐81 sets forth the state’s official policy that wearing a face
covering in compliance with EO 20‐81 does not violate § 609.735. EO 20‐81 ¶ 19. There
is therefore no credible threat that the Governor or the Attorney General will instigate
prosecution against an individual under § 609.735 for complying with EO 20‐81.7 But the
reverse is not true—that is, neither the Governor nor the Attorney General has an
official policy against prosecuting individuals for violating EO 20‐81. Nor have the
Hennepin defendants claimed that they have adopted an official policy not to prosecute
violations of EO 20‐81 or § 609.735.8 It therefore appears that plaintiffs’ alleged fear of
facing prosecution for either wearing or not wearing a mask is sufficient under 281 Care
Committee to establish standing as against these defendants.
b. Eleventh Amendment
i. Ex parte Young
As discussed below, Minn. Stat. § 8.01 grants the Governor and the Attorney
General some discretionary authority to be involved in criminal prosecutions.
As noted below, there appear to be no reported cases of prosecutions under
either § 609.735 or its predecessor since the latter was first enacted in 1923. Defendants
do not argue that this long history of lack of prosecution deprives plaintiffs of standing,
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The State defendants next argue that they are entitled to Eleventh Amendment
immunity. Under the Eleventh Amendment, “an unconsenting State is immune from
suits brought in federal courts by her own citizens as well as by citizens of another
state.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (citation and
quotation marks omitted). The Supreme Court recognized an exception to this
immunity in Ex parte Young, 209 U.S. 123 (1908). “Under the Ex Parte Young doctrine, a
private party can sue a state officer in his official capacity to enjoin a prospective action
that would violate federal law.” 281 Care Comm., 638 F.3d at 632. For this exception to
apply, the state official must have “some connection” with the enforcement of the
allegedly unconstitutional law; otherwise, the lawsuit is “merely making [the official] a
party as a representative of the state, and thereby attempting to make the state a party.”
Ex parte Young, 209 U.S. at 157.
In 281 Care Committee, the Eighth Circuit held that the Minnesota Attorney
General had a sufficient connection with the enforcement of a challenged state statute
based in part on the fact that, under Minn. Stat. § 8.01, a county attorney may request
that the Attorney General take over a criminal prosecution. 281 Care Comm., 638 F.3d
at 632–33; see also Reprod. Health Servs. of Planned Parenthood v. Nixon, 428 F.3d 1139, 1145
(8th Cir. 2005) (holding that the Missouri attorney general was potentially a proper
defendant because Missouri law permits the governor to direct him to aid prosecutors
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and trial courts to direct him to sign indictments). It therefore appears that plaintiffs’
claims against the Attorney General may fall within Ex parte Young. Similarly, § 8.01
grants the Governor the authority to request the Attorney General to “prosecute any
person charged with an indictable offense,” indicating that claims against the Governor
may also fall within Ex parte Young.
The Court recognizes that, in a second appeal, the Eighth Circuit in 281 Care
Committee held that the Minnesota Attorney General was immune under the Eleventh
Amendment. 281 Care Comm. v. Arneson, 766 F.3d 774, 796–97 (8th Cir. 2014). By that
stage of the proceedings, however, a deputy attorney general had filed an affidavit
attesting that the Attorney General’s Office had never initiated a prosecution under the
challenged law, that the office was not aware of any county attorney who had asked the
office to do so, that the office would decline any such request, and that the office had no
intention of undertaking any enforcement activities. Id. On the basis of that affidavit,
the Eighth Circuit held that the Attorney General was immune from suit under the
Eleventh Amendment. Id. at 797. In this case, however, neither the Governor nor the
Attorney General has introduced evidence that he does not intend to use his authority
under § 8.01.
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Finally, the State defendants argue that, under the Eleventh Amendment and
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984), the Court lacks
jurisdiction to resolve plaintiffs’ claims that EO 20‐81 violates the Minnesota
Constitution. The Court agrees.
As the Supreme Court explained in Pennhurst, the Ex parte Young exception to
Eleventh Amendment immunity is premised on the theory that “sovereign immunity
does not apply because an official who acts unconstitutionally is ‘stripped of his official
or representative character.’” Id. at 104 (quoting Ex parte Young, 209 U.S. at 160). This is
somewhat of a legal fiction, but it is necessary to vindicate federal rights and ensure the
supremacy of federal law. Id. at 105. That necessity does not exist in cases in which a
state official is alleged to be acting in violation of state law. “On the contrary, it is
difficult to think of a greater intrusion on state sovereignty than when a federal court
instructs state officials on how to conform their conduct to state law.” Id. at 106. The Ex
parte Young exception to Eleventh Amendment immunity therefore does not apply to
plaintiffs’ claims that Governor Walz and the other State defendants have violated
Minnesota law. See Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341, 345–46 (7th
Cir. 2020) (holding that Pennhurst barred plaintiffs’ claim that COVID‐19 restrictions on
religious gatherings violated state law); see also Bacon v. Neer, 631 F.3d 875, 880 (8th Cir.
2011) (explaining that a federal court would have no jurisdiction to enjoin the
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defendants from enforcing state law even if their construction of state law was based on
an erroneous interpretation of federal law).
Plaintiffs’ only argument regarding Pennhurst seems to be that, although the
Court cannot enjoin state officials from violating state law, the Court can decide
whether state officials have violated state law in the course of litigating the federal
constitutional claims. But whether EO 20‐81 violates the Minnesota Constitution is not
relevant to the merits of plaintiffs’ federal claims. Moreover, the fact that the Court may
have jurisdiction over plaintiffs’ federal claims does not establish an exception to
Eleventh Amendment immunity; the Court still may not “intru[de] on state
sovereignty” by “instruct[ing] state officials on how to conform their conduct to state
law.” Pennhurst, 465 U.S. at 106. Finally, the doctrine of constitutional avoidance does
not override the Eleventh Amendment. See id. at 120–23.
To summarize, then, it appears that the Court likely has jurisdiction only over
plaintiffs’ federal claims against the Governor, the Attorney General, and the Hennepin
defendants, and only insofar as those claims rest on plaintiffs’ allegation that EO 20‐81
conflicts with § 609.735.
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a. Section 609.735 and EO 20‐81
As noted, plaintiffs’ main claim is that they are caught in an impossible situation:
EO 20‐81 makes it a crime not to wear face coverings in indoor public settings, while
Minn. Stat. § 609.735 makes it a crime to wear face coverings in public places (with
exceptions that do not apply to this case9). Defendants argue that EO 20‐81 and
§ 609.735 do not, in fact, conflict because (1) § 609.735 prohibits concealing one’s identity
by means of a “disguise,” and the face coverings required by EO 20‐81 neither conceal
one’s identity nor constitute a “disguise”; and (2) § 609.735 requires proof of an intent to
conceal one’s identity, and someone who wears a mask to comply with EO 20‐81 is not
wearing a mask to conceal his or her identity.
These issues have not been addressed by the Minnesota Supreme Court, and
therefore this Court must attempt to predict “what that court would probably hold
were it to decide the issue[s].” Ventura v. Titan Sports, Inc., 65 F.3d 725, 729 (8th Cir.
1995). For a number of reasons, this Court believes that the Minnesota Supreme Court
would hold that § 609.735 is violated only when someone wears a face covering for the
purpose of concealing his or her identity.
Defendants do not argue that wearing a face mask to slow the spread of COVID‐
19 fits within the “medical treatment” exception to § 609.735.
CASE 0:20-cv-01688-PJS-ECW Doc. 51 Filed 10/02/20 Page 22 of 35
The original version of the statute was enacted in 1923.10 See 1923 Minn. Laws ch.
160, § 1. Like similar laws enacted during the same era, the law grew out of concerns
over the rise of the Ku Klux Klan. See Wayne R. Allen, Note, Klan, Cloth & Constitution:
Anti‐Mask Laws & the First Amendment, 25 Ga. L. Rev. 819, 821–22 & n.17 (1991). The
original version of the statute clearly required that the perpetrator act with the intent to
conceal his or her identity: “It shall be unlawful for any person . . . to appear on any
street or highway, or in other public places or any place open to view by the general
public, with his face or person partially or completely concealed by means of a mask or
other regalia or paraphernalia, with intent thereby to conceal the identity of such person.”
Minn. Stat. § 615.16 (1941) (emphasis added). The original version of the statute also
established a presumption: “The wearing of any such mask, regalia or paraphernalia by
any person on any street or highway or in other public places or any place open to view
by the general public, shall be presumptive evidence of wearing the same with intent to
conceal the identity of such person[.]” Id.
The statute was amended in 1963. See 1963 Minn. Laws ch. 753, § 609.735. The
purpose of the amendment was to delete the presumption in light of State v. Higgin, 99
The statute was originally codified at Minn. Stat. § 10300 (1923) and later at
Minn. Stat. § 615.16 (1941).
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N.W.2d 902 (Minn. 1959).11 Although the remainder of the statute was rewritten—and
although the rewritten version did not contain an explicit intent requirement—the
Advisory Committee Comment explained that the substance of the new version was
intended to be the same as the substance of the original version (save for the deletion of
the presumption). See Minn. Stat. § 609.735, 1963 Advisory Comm. Cmt. (“This contains
the substance of Minn. St. § 615.16 which will be superseded. The presumption
contained in the latter section has not been retained in view of State v. Higgin, 1960, 257
Minn. 46, 99 N.W.2d 902.”). Minnesota appears to regard such commentary as
authoritative. See State v. Lopez, 908 N.W.2d 334, 336 n.3 (Minn. 2018) (citing State v.
Vredenberg, 264 N.W.2d 406, 407 (Minn. 1978) (per curiam) as an example of a case in
which there was “evidence that the Legislature did not intend to change the law”);
Vredenberg, 264 at 407 (relying on an Advisory Committee Comment stating that the
amended statute contained the substance of the earlier statute to find no change in the
In addition to the statutory history, the language of § 609.735 also suggests that
intent to conceal is an element of the offense. The statute makes it unlawful to conceal
one’s identity in a particular way—“by means of a robe, mask, or other disguise.” The
Higgin held that, when specific intent is an element of an offense, a jury can
never be instructed that a given set of facts gives rise to a presumption of such intent.
Higgin, 99 N.W.2d at 907.
CASE 0:20-cv-01688-PJS-ECW Doc. 51 Filed 10/02/20 Page 24 of 35
word “other” in the phrase “robe, mask, or other disguise” indicates that the statute
encompasses only the use of a robe or mask as a “disguise.” In other words, the statute
does not make it unlawful to wear robes and masks; the statute makes it unlawful to
wear disguises. “Disguise,” in turn, connotes something worn for the purpose of
concealing one’s identity. Notably, three of the five exceptions to the statute—for
religious beliefs, amusement, and entertainment—cover cases in which people could be
wearing face coverings (such as Halloween costumes) with the intent to conceal their
It is true that, if § 609.735 is not violated unless a person acts with intent to
conceal his or her identity, then the exceptions for protection from weather and for
medical treatment are redundant. But “[r]edundancy is not a silver bullet,” and
“[s]ometimes the better overall reading of the statute contains some redundancy.”
Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881 (2019).
Finally, the Court believes that the Minnesota Supreme Court would interpret
§ 609.735 to require intent to conceal one’s identity because, without such a
requirement, the statute would lead to absurd results. See Am. Fam. Ins. Grp. v. Schroedl,
616 N.W.2d 273, 278 (Minn. 2000) (“courts should construe a statute to avoid absurd
results and unjust consequences”). A construction worker could not wear a dust mask
while remodeling a public space, a government official could not wear a hazmat suit
CASE 0:20-cv-01688-PJS-ECW Doc. 51 Filed 10/02/20 Page 25 of 35
while cleaning up a chemical spill in a public place, an emergency medical technician
could not wear a surgical mask while tending to a person injured on a public road, and
a nail artist could not wear a mask while giving a manicure. The Minnesota Legislature
could not possibly have intended to criminalize such a broad range of commonplace
conduct. Cf. In re Welfare of C.R.M., 611 N.W.2d 802, 809 (Minn. 2000) (“great care is
taken to avoid interpreting statutes as eliminating mens rea where doing so criminalizes
a broad range of what would otherwise be innocent conduct”).
Indeed, as plaintiffs interpret the statute, § 609.735 not only bars Governor Walz
from ordering Minnesotans to wear face coverings in public places, but § 609.735 bars
Minnesotans from voluntarily wearing face coverings in public places if they are doing
so to slow the spread of COVID‐19. It is very difficult to believe that the Minnesota
Supreme Court would interpret § 609.735 to forbid a Minnesotan from wearing a face
mask in a public place if her reason for doing so was to protect herself from being
infected by a communicable disease or to prevent herself from infecting another person.
Needless to say, such an interpretation of § 609.735 would raise significant
constitutional concerns. Cf. Jacobson v. Massachusetts, 197 U.S. 11, 38–39 (1905)
(upholding a mandatory‐vaccination provision, but suggesting that the result would be
different if the plaintiff could have shown that vaccination “would seriously impair his
health, or probably cause his death”).
CASE 0:20-cv-01688-PJS-ECW Doc. 51 Filed 10/02/20 Page 26 of 35
This is not to say that plaintiffs’ position that § 609.735 conflicts with EO 20‐81 is
frivolous.12 But plaintiffs’ reply brief did not bother to respond to defendants’
arguments concerning the proper interpretation of § 609.735; in fact, plaintiffs’ reply
brief said nothing at all about their centerpiece claim that § 609.735 conflicts with EO 20‐
81. This failure is particularly problematic in light of the fact that there are no
Minnesota cases construing § 609.735. Under all of the circumstances, the Court finds
that plaintiffs have not met their burden to show a “fair chance of prevailing” on their
argument that EO 20‐81 conflicts with § 609.735. See Powell v. Noble, 798 F.3d 690, 698
(8th Cir. 2015) (citation and quotation marks omitted).
b. Challenges to the Validity of EO 20‐81
As noted, because plaintiffs have not clearly alleged that they intend to enter
public indoor spaces without face coverings, they likely lack standing to pursue their
challenges to the validity of EO 20‐81 under the Elections Clause and the First
Amendment. Even if they had standing, however, both of their challenges lack merit.
i. Elections Clause
The Elections Clause provides as follows:
The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each
For example, Minn. Stat. § 609.02, subd. 9, undermines defendants’ argument
regarding intent. But no party to this lawsuit has even cited § 609.02, subd. 9, much less
addressed its impact on the issues now before the Court.
CASE 0:20-cv-01688-PJS-ECW Doc. 51 Filed 10/02/20 Page 27 of 35
State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations, except as to the
Places of chusing Senators.
U.S. Const. Art. I, § 4, cl. 1.
Plaintiffs’ briefs and amended complaint seem to contend that EO 20‐81 is a law
regarding the “Manner of holding Elections” and violates the Elections Clause because
it was not enacted by the “Legislature.” After the Court pointed out at oral argument
that EO 20‐81 is a generally applicable provision that does not on its face govern
elections, plaintiffs conceded that EO 20‐81 does not, by itself, contravene the Elections
Clause. Plaintiffs’ claim now seems to be that EO 20‐81 in combination with the Secretary
of State’s guidance contravenes the Elections Clause.
The Court disagrees. Plaintiffs have not cited, and the Court has not found, a
single case holding that a generally applicable provision that incidentally applies at a
polling place constitutes a regulation of the “Times, Places and Manner of holding
Elections.” Cf. Cook v. Gralike, 531 U.S. 510, 523–24 (2001) (holding that the challenged
law “bears no relation to the ‘manner’ of elections as we understand it, for in our
commonsense view that term encompasses matters like ‘notices, registration,
supervision of voting, protection of voters, prevention of fraud and corrupt practices,
counting of votes, duties of inspectors and canvassers, and making and publication of
election returns’” (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932))).
CASE 0:20-cv-01688-PJS-ECW Doc. 51 Filed 10/02/20 Page 28 of 35
The fact that the Secretary of State provided advice as to how to implement EO
20‐81 at polling places does not somehow turn EO 20‐81 into a law regarding the
“Manner of holding elections.” As noted, the Secretary of State’s memorandum is not a
law and does not purport to be binding. The Court rejects the notion that the state
official charged with overseeing elections cannot provide guidance concerning how to
implement a generally applicable provision at polling places without somehow running
afoul of the Elections Clause. If that were the case, election officials would be barred
from providing advice on a whole range of subjects, from how to handle disruptive
voters to how to accommodate voters with disabilities. Plaintiffs’ claim under the
Elections Clause is plainly meritless.
ii. First Amendment
Finally, plaintiffs allege that EO 20‐81 violates the First Amendment because it
does not permit them to enter indoor public spaces without face coverings as a way to
protest the requirement that they wear face coverings when they enter indoor public
spaces. This claim is meritless for two reasons: First, EO 20‐81 does not implicate the
First Amendment at all. Second, even if EO 20‐81 did implicate the First Amendment,
the order would easily pass muster under both United States v. O’Brien, 391 U.S. 367
(1968), and Jacobson v. Massachusetts, 197 U.S. 11 (1905).
CASE 0:20-cv-01688-PJS-ECW Doc. 51 Filed 10/02/20 Page 29 of 35
The Supreme Court has recognized that expressive conduct may be entitled to a
measure of First Amendment protection. Texas v. Johnson, 491 U.S. 397, 404 (1989) (flag
burning). In general, courts evaluate the validity of a law that regulates expressive
conduct under the standard articulated in O’Brien. This does not mean, however, that
every law regulating conduct is subject to scrutiny under O’Brien whenever an
individual decides to violate the law for the purpose of sending a message.
If combining speech and conduct were enough to create
expressive conduct, a regulated party could always
transform conduct into “speech” simply by talking about it.
For instance, if an individual announces that he intends to
express his disapproval of the Internal Revenue Service by
refusing to pay his income taxes, we would have to apply
O’Brien to determine whether the Tax Code violates the First
Amendment. Neither O’Brien nor its progeny supports such
Rumsfeld v. F. for Acad. & Inst’l Rts., Inc., 547 U.S. 47, 66 (2006) (“FAIR”) (rejecting First
Amendment challenge to provision requiring institutions of higher learning to permit
military recruiters access to students on the same basis as other recruiters or forfeit
certain federal funds).
To merit First Amendment protection under O’Brien, then, the conduct regulated
by the challenged law must be “inherently expressive.” Id. Here, as in FAIR, the
conduct at issue is not inherently expressive. Like the hypothetical observer in
FAIR—who, absent explanation, would have no idea why a military recruiter would be
CASE 0:20-cv-01688-PJS-ECW Doc. 51 Filed 10/02/20 Page 30 of 35
interviewing law students somewhere other than on a law‐school campus, id.—an
observer would have no idea why someone is not wearing a face covering. Absent
explanation, the observer would not know whether the person is exempt from EO 20‐
81, or simply forgot to bring a face covering, or is trying to convey a political message.
That fact takes the conduct outside of the First Amendment protection afforded by
O’Brien. Id. (“The fact that such explanatory speech is necessary is strong evidence that
the conduct at issue here is not so inherently expressive that it warrants protection
Even if wearing or not wearing a face covering was inherently expressive, EO 20‐
81 is clearly constitutional, whether analyzed under O’Brien or Jacobson. Under O’Brien,
a government regulation is sufficiently justified if it is within
the constitutional power of the Government; if it furthers an
important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest.
O’Brien, 391 U.S. at 377.
There is no question that Minnesota has the constitutional authority to enact
measures to protect the health and safety of its citizens. See Jacobson, 197 U.S. at 24–25
(under the Constitution, states retain the general police power to enact reasonable
regulations to protect public health and safety). Likewise, there is no question that
CASE 0:20-cv-01688-PJS-ECW Doc. 51 Filed 10/02/20 Page 31 of 35
EO 20‐81 furthers the substantial government interest in controlling the spread of a
deadly and highly contagious disease. As discussed above, federal health officials
recommend face coverings as an effective way to slow the spread of COVID‐19, and this
recommendation finds support in recent studies. Finally, EO 20‐81 is unrelated to the
suppression of free expression and has at most an incidental effect on First Amendment
freedoms that is no greater than necessary; plaintiffs are free to express their opinions
about EO 20‐81 in every conceivable way except by violating its provisions and putting
at risk the lives and health of their fellow citizens.
Likewise, EO 20‐81 is constitutional under the standard established in Jacobson,
which requires courts to examine whether a measure adopted to address a public‐
health crisis has a “real or substantial relation” to the crisis and, assuming that it has
such a relation, whether it is “beyond all question, a plain, palpable invasion” of a
constitutional right. Jacobson, 197 U.S. at 31; see In re Rutledge, 956 F.3d 1018, 1028–29
(8th Cir. 2020) (applying Jacobson to assess the constitutionality of a measure adopted in
response to the COVID‐19‐pandemic). Again, there is no question that EO 20‐81 bears a
real and substantial relation to the public‐health crisis caused by COVID‐19. And EO
20‐81 either does not implicate the First Amendment at all or, at most, has an incidental
and trivial impact on First Amendment freedoms. In short, plaintiffs have no chance of
success on their claim that EO 20‐81, standing alone, violates the First Amendment.
CASE 0:20-cv-01688-PJS-ECW Doc. 51 Filed 10/02/20 Page 32 of 35
C. Threat of Irreparable Harm, Balance of Harms, and the Public Interest
Plaintiffs have not shown a threat of irreparable harm. They likely lack standing
to pursue any claims against the Ramsey defendants or the Secretary of State. Similarly,
they likely lack standing to pursue any standalone challenge to the validity of EO 20‐81.
Even if they had standing to pursue a standalone challenge, the Court would likely lack
jurisdiction to entertain their state‐law attacks, and they would have virtually no chance
of success on their federal‐law attacks.
That leaves plaintiffs’ claim that the alleged conflict between EO 20‐81 and
§ 609.735 infringes their First Amendment rights. “When a plaintiff has shown a likely
violation of his or her First Amendment rights, the other requirements for obtaining a
preliminary injunction are generally deemed to have been satisfied.” Minn. Citizens
Concerned for Life v. Swanson, 692 F.3d 864, 870 (8th Cir. 2012) (en banc) (citation and
quotation marks omitted). This is the rare case, however, in which this general rule
does not hold sway. Even if plaintiffs had a “fair chance of prevailing” on their claim
that a conflict between EO 20‐81 and § 609.735 violates their First Amendment rights,
they have not shown a threat of irreparable harm, because they have not shown that
there is any chance that they will actually be prosecuted for violating § 609.735 if they
wear a face covering in compliance with EO 20‐81.
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The record before the Court contains no evidence that either § 609.735 or its
predecessor has ever been enforced, despite being on the books for nearly a century.13
Meanwhile, over the past six months, millions of Minnesotans have worn face coverings
in indoor public settings, such as stores, restaurants, salons, medical facilities, places of
worship, offices, and classrooms. If plaintiffs’ reading of § 609.735 is correct, then the
statute has been violated hundreds of millions of times during the pandemic. And yet
plaintiffs cannot point to a single instance of anyone being prosecuted under § 609.735
for wearing a face covering during the pandemic.
This is hardly surprising, as EO 20‐81 itself makes clear that it is the state’s
official policy that complying with EO 20‐81 does not violate § 609.735. Plaintiffs did
manage to find a county attorney who was willing to opine that complying with EO 20‐
81 would violate § 609.735. (The county attorney did not address any of the evidence to
Section 609.735 has been mentioned in only a handful of reported cases and has
never been mentioned in connection with an actual prosecution under that statute. In
United States v. Pentaleri, No. 07‐CV‐0298 (PAM/JJG), 2007 WL 4350798 (D. Minn.
Dec. 11, 2007), the district court noted that there was probable cause to arrest because,
among other reasons, the defendant appeared to have violated § 609.735. Id. at *5.
There is no suggestion that the defendant was in fact arrested on that basis, however;
instead, the court was applying the objective standard applicable under the Fourth
Amendment. Id. In Stepnes v. Ritschel, 663 F.3d 952 (8th Cir. 2011), the Eighth Circuit
mentioned that the plaintiff was booked for a violation of § 609.735. Id. at 958. There is
no mention of the plaintiff wearing any kind of disguise, however, and the district‐court
decision indicates that the plaintiff was booked for unlawful gambling under a
mistaken statutory citation. Stepnes v. Ritschel, 771 F. Supp. 2d 1019, 1028 (D. Minn.
CASE 0:20-cv-01688-PJS-ECW Doc. 51 Filed 10/02/20 Page 34 of 35
the contrary discussed above.) Putting aside the fact that none of the plaintiffs live in
this county attorney’s jurisdiction or even allege that they plan to visit that jurisdiction,
this county attorney does not go so far as to say that he has prosecuted or would
prosecute someone for wearing a mask in the midst of this pandemic.
In addition, given that their alleged inability to vote in person is a focal point of
plaintiffs’ allegations of irreparable harm, it is worth noting that plaintiffs can vote in
person without fear of prosecution under § 609.735. According to the Secretary of
State’s guidance, anyone who does not want to wear a mask at a polling place may vote
curbside. Am. Compl. Ex. 2.
In contrast to the non‐existent threat of prosecution under § 609.735, the threat of
harm from an injunction prohibiting the enforcement of EO 20‐81 is immediate and
compelling.14 The Governor’s order addresses an ongoing public‐health emergency by
requiring a measure that federal health officials recommend and that studies have
Plaintiffs seek the following injunction: “The Defendants are enjoined from
enforcing Minnesota’s policy criminalizing wearing a mask and not wearing a mask in
public places and in polling places.” ECF No. 21. The Court notes, however, that even
if an injunction were required to protect plaintiffs from a conflict between EO 20‐81 and
§ 609.735, the Court would not necessarily have to enjoin the enforcement of EO 20‐81.
The Court could instead enjoin the enforcement of § 609.735 against anyone wearing a
mask in compliance with EO 20‐81. Given that the choice would be between enjoining a
particular application of a never‐enforced statute, on the one hand, and enjoining an
executive order that is saving lives during an ongoing public‐health crisis, on the other
hand, the balance of harms and the public interest would overwhelmingly point toward
enjoining enforcement of § 609.735.
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predicted will save thousands of lives. Moreover, while plaintiffs focus on the alleged
harm to their ability to vote in person, it is far more likely that enjoining enforcement of
EO 20‐81 would seriously disrupt the upcoming election by discouraging voter turnout
and limiting the number of people willing to staff polling places. The balance of harms
and the public interest both weigh very heavily against enjoining enforcement of EO 20‐
Having carefully considered all of the Dataphase factors, the Court finds that
plaintiffs are not entitled to a preliminary injunction.
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT plaintiffs’ motion for a preliminary injunction [ECF
No. 8] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: October 2, 2020
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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