Minnesota Charges James O'Keefe and Cam Higby With Felonies. Its Own Complaint Says Poll Workers Let Them Apply Under Voters' Names

Hennepin County Attorney Mary Moriarty on Wednesday charged James O'Keefe, 42, and Cam Higby, 26, with two felonies each, identity theft and unlawful voting, over the undercover videos they shot at Minneapolis polling places during Minnesota's Aug. 11 primary. Each count carries up to five years in prison and a $10,000 fine, according to the criminal complaint.

Neither man signed a voter oath or cast a ballot. Moriarty's own announcement concedes it: "While Mr. Higby and Mr. O'Keefe did not sign the oath, both men intentionally misrepresented their identities in applying for ballots."

The complaint also lays out, in the state's own words, how far the pair got. At one precinct, "election judges allowed Defendant Higby to apply for a ballot because he used the stolen identity of a pre-registered Minnesota voter." At another, the election judge, "believing that Defendant O'Keefe was who he identified himself as, confirmed that the individual is registered to vote."

The video that started it

Higby posted the video on Aug. 14. Wearing a face-covering veil, he gave poll workers the name and address of a real registered voter in the precinct, then asked how vouching works. Under Minnesota law, a voter registered in a precinct "may sign up to eight proof-of-residence oaths on any election day," letting people without proof of address register and vote that same day.

"I walked into this polling station with a random name of a random person who is registered to vote in this precinct. I am not that person," Higby says in the video, as quoted in the complaint. Outside another precinct he says poll workers told him, "okay you are in the system you can vote today."

Higby re-posted the video Wednesday: "This video caused Minnesota to charge me with a felony. Watch it, they're afraid of it."

What the complaint says happened

The charges cover four Minneapolis precincts, all on primary day:

Ward 1, Precinct 1. Higby, in disguise, gave the name and address of a registered voter, said he was there to vote and to vouch for a woman with him, asked about vouching, then faked a phone call and left. The complaint says he "was prevented from falsely voting by election judges, when he refused to sign the appropriate paperwork."

Ward 1, Precinct 5. Higby again gave a registered voter's name, told a judge he lived in the precinct, and started vouching for a companion, "only stopping at the point where an oath must be sworn." One judge called him "quite peculiar" for asking about 10 times whether ID was needed. He left saying he would come back with eight more people. The incident log says no one in the group voted and that they left after a worker asked for ID.

Ward 2, Precinct 5. O'Keefe gave a registered voter's name, confirmed that voter's date of birth with the judge, then asked about vouching. The voter told investigators he never gave permission.

Ward 3, Precinct 5. O'Keefe gave another registered voter's name, the judge confirmed the person was registered, and O'Keefe asked about vouching.

The legal theory

The unlawful-voting count rests on one line of Minnesota Statute 204C.14: no one may "misrepresent the individual's identity in applying for a ballot." The complaint says the Secretary of State's office told investigators that applying for a ballot begins the moment a person gives a roster judge a name and address. The same statute says a signature on the polling roster is "prima facie evidence" of intent. Neither man signed.

"Elections are the bedrock of democracy and their protection is one of our highest priorities," Moriarty said in her statement. Secretary of State Steve Simon added: "Any attempt to disrupt or deceive our election workers will not be tolerated."

'Lawfare'

Higby called it exactly that. "Minnesota has filed TWO FELONY CHARGES AGAINST ME related to my Burqa video in the state. No laws were broken," he wrote. "I showed how Minnesota allows cheating in elections. Now they want to TAKE MY RIGHT TO VOTE AWAY. This is lawfare."

O'Keefe answered with a video statement Wednesday night. "It is about whether citizens still have the right to question their government," he said. "This is now a landmark First Amendment case, and every American's right to speak truth to power has been put on the line." He said his foundation will cover the legal costs of Higby and others "for their lawful reporting."

O'Keefe was charged by summons and is not in custody, his complaint says. The case numbers are 27-CR-26-28438 (O'Keefe) and 27-CR-26-28437 (Higby). Minnesotans vote in the general election Tuesday, Nov. 3.