Coleman v. RitchieColeman v. Ritchie
Lead Opinion
OPINION
Petitioners Norm Coleman, Cullen Shee-han, and Cara Beth Lindell filed a petition and an amended petition pursuant to
At issue here are absentee ballot return envelopes that were rejected by local election officials on and before election day. The process of voting by absentee ballot is governed by Minn.Stat. ch. 208B (2008). A voter first makes written application for an absentee ballot. MinmStat. § 208B.04 (2008). An absentee ballot is provided to the voter, along with a ballot envelope and a return envelope.
Under
(1) the voter’s name and address on the return envelope are the same as the information provided on the absentee ballot application;
(2) the voter’s signature on the return envelope is the genuine signature of the individual who made the application for an absentee ballot, and the certificate of eligibility to vote by absentee ballot has been completed as prescribed in the directions for casting an absentee ballot;
(3) the voter is registered and eligible to vote in the precinct or has included a properly completed voter registration application in the return envelope; and
(4) the voter has not already voted in that election, either in person or by absentee ballot.
Id. If the absentee ballot return envelope is “accepted,” it is opened and the ballot envelope inside is placed in a separate ballot container.
If, on the other hand, any of the four requirements under
“There is no other reason for rejecting an absentee ballot.” Rejected absentee ballot return envelopes are returned unopened to the county auditor, and the ballots they contain are not counted on election night. Id.
On November 18, 2008, the Minnesota State Canvassing Board (Board) met to certify the results of the election held on November 4, 2008. Because the difference in votes cast for U.S. Senate candidates Norm Coleman and Al Franken was less than one-half of one percent, the Board ordered an automatic manual recount as required by
According to the minutes of the November 18 meeting of the State Canvassing Board, a representative of Al Franken and the A1 Franken for Senate campaign urged the Board to review all rejected absentee ballot return envelopes and include in its recount the votes of any absentee ballots that were improperly rejected. This request was opposed by representatives of Norm Coleman and the Norm Coleman for Senate campaign. In advance of the November 18 meeting, the Secretary of State had received an opinion of the Minnesota Attorney General’s Office that absentee ballots that were rejected by election judges under
On or around December 2, 2008, the Secretary of State’s Office asked local election officials to review all previously rejected absentee ballot return envelopes and determine the number of envelopes that were rejected for each of the four reasons provided in
By letter to the members of the State Canvassing Board dated December 10, 2008, the Minnesota Attorney General’s Office identified and described four statutory mechanisms for correcting errors in the election process: correction of errors by county election officials as part of the canvassing process under
At its December 12, 2008, meeting, the State Canvassing Board was advised by a representative of the Secretary of State that in the 49 counties and municipalities that had thus far completed their voluntary sorting and reported the results to the Secretary of State, there were 4,823 rejected absentee ballot return envelopes, of which 638 had been determined by local election officials to have been improperly rejected. However, some counties had declined to participate in the voluntary sorting process. The Board unanimously recommended, but declined to order, that all сounty canvassing boards review rejected absentee ballot return envelopes for the purpose of identifying obvious errors in the rejection of those ballots, correcting those errors, and reporting new vote totals to the State Canvassing Board.
The petition and an amended petition in this case were filed on December 15, 2008. The petition alleged that the State Canvassing Board failed to provide uniform guidance to the counties on how to determine whether or not an absentee ballot return envelope was improperly rejected. The petition further alleged that the guidance given to counties by the Secretary of State’s Office for sorting the previously rejected absentee ballot envelopes was incomplete and incorrect, resulting in the various counties applying different standards. The petition asserted that previ
A1 Franken and the A1 Franken for Senate campaign asserted, in opposition to the petition, that county canvassing boards have the authority under
We issued an order on December 18, 2008, that granted in part and denied in part the petition. We agreed with petitioners that improper rejection of an absentee ballot envelope is not within the scope of errors subject to correction by county canvassing boards during an administrative recount proceeding under either
The question before us on December 18, 2008, was whether improperly rejected absentee ballots are within the scope of errors subject to correction by county canvassing boards that may be filed in an amended report under
I.
We begin by briefly reviewing the statutory provisions for processing of ballots in an election, as prescribed in Minn. Stat. ch. 204C (2008).
Under
The counted ballots, along with any defective and blank ballots, are sealed in envelopes and delivered, together with the summary statement of returns, to the county auditor.
Within seven days of the state general election, the respective county canvassing boards meet to canvass the general election returns delivered by local election officials to the respective county auditors.
There are two statutory mechanisms by which county canvassing boards may correct errors made by local election officials. One mechanism applies where the candidates agree an error has occurred, and the other applies where the candidates do not agree.
Minnesota Statutes
If the candidates do not agree,
A county canvassing board may determine by majority vote that the election judges have made an obvious error in counting or recording the votes for an office. The county canvassing board shall then promptly notify all candidates for that office of the determination, including a description of the error. A candidate who receives notification pursuant to this subdivision or any candidаte who believes that the election judges in a precinct have made an obvious error in the counting or recording of the votes for an office may apply without unreasonable delay to the district court of the county containing the precinct in which the alleged error was made for an order determining whether or not an obvious error has been made. The applicant shall describe the alleged error in the application and may submit additional evidence as directed by the court. The applicant shall notify the county canvassing board and all candidates for the affected office in the manner directed by the court. If the court finds that the election judges made an obvious error it shall issue an order specifying the error and directing the county canvassing board to inspect the ballots and returns of the precinct in order to correct the error and to proceed further in accordance with this section or otherwise as the court may direct.
The Minnesota legislature has established two statutory procedures for resolving disputes concerning the outcome of elections: a manual administrative recount under
A manual administrative recount is intended to ensure that the votes cast in the election were accurately counted. When the margin of victory in an election is less than one-half of one percent, as it was in this election, a manual recount is automatic.
Minnesota Statutes § 204C.361(a) (2008) requires the Secretary of State to adopt uniform recount procedures, and requires that all recounts be conducted in accordance with those rules. Under Minn. R. 8235.0700 (2007), the materials available during the administrative recount are the summary statements prepared by election judges on election night and the sealed envelopes of voted ballots, although other materials are to be available upon request. During the recount, the sealed envelopes of ballots are opened and the ballots inside are recounted in accordance with
The other statutory procedure established by the legislature for resolving elec
Notice of an election contest must be served and filed within seven days after the completion of the canvass.
II.
With this statutory background, we turn to the question of whether improperly rejected absentee ballots are within the scope of errors subject to correction by a county canvassing board under
The December 10 letter from the Attorney General’s Office to the State Canvassing Board opined that
The authority of county canvassing boards under
The question, then, is whether an error in rejection of an absentee ballot “appears evident from an examination of the returns made by the various precincts.” Determination of whether an absentee ballot was correctly rejected wоuld require examination, at a minimum, of the absentee ballot return envelope, but those envelopes are not part of the “returns” made by the precincts. We have defined “returns” as “an official statement of votes cast at an election, transmitted to some authorized custodian, for the purpose of being canvassed by some proper authority.” State ex rel. Thompson v. Common Council,
After the votes marked on the ballots have been counted, the precinct election judges are directed to “write the number in the proper place on the summary statements.”
The county canvassing boards then meet to “canvass the general election returns delivered to the county auditor.”
Thus, the “canvass” of “returns” by the county canvassing board is a narrow process, limited to compilation and reporting of numbers contained in the precinct summary statements. This limited scope is consistent with our long-standing holding that the function of canvassing election returns is ministerial. See Hunt v. Hoffman,
This ministerial function of canvassing the returns entails review only of the precinct summary statements of returns, not examination of actual ballots. Although each precinct’s counted ballots, as well as their blank and spoiled ballots, are delivered to the county auditor along with the summary statement of returns, each in separate sealed envelopes, the legislature has authorized the county canvassing boards to have access only to the summary statements.
Returning to section 204B.39, as stated in Andersen, “obvious error[s]” means those that “appear[] evident from an examination of the returns made by the various precincts.” 264 Minn, at 261,
In addition, given both the narrow scope of returns and the ministerial function of county canvassing boards, it is not surprising that the legislature limited the errors that county canvassing boards may address under
In addition, even if errors in the rejection of absentee ballots were “obvious error[s] in the counting or recording of the votes,”
Thus, the unilateral correction by county canvassing boards of errors that may have been made in the rejection of absentee ballots is not provided for by
III.
Petitioners further contend that the question of whether absentee ballot
We agree with petitioners that whether absentee ballots were rejected erroneously may be addressed in an election contest under chapter 209. An error in rejecting an absentee ballot return envelope is “an irregularity in the conduct of an election” that affects “the question of who received the largest number of votes legally cast.”
Petitioners invoked our jurisdiction in this matter under
In Andersen, the issue was whеther the State Canvassing Board could accept amended returns submitted by ten county canvassing boards, correcting errors under a predecessor statute to section 204C.B9, after the county boards had submitted their initial returns, but before the State Canvassing Board had completed its canvass of the county board returns. 264 Minn, at 258-59,
We concluded that the statute contemplated corrections by county boards only during their initial canvass. The statute itself began with the phrase “[i]f in conducting the canvass of votes,”
We rejected the argument that a county canvassing board could not be “revived” after its initial canvass, but not because the statute required that conclusion. Rather, we explained that the court’s authority to order correction of errors under MinmStat. § 203.38 (1961), the predecessor to
Thus, in Andersen we did not hold that the corrections made by the county boards after their initial canvasses were authorized under the existing statute. Instead, we held that the amended returns should be considered by the State Canvassing Board, despite the fact that the timing of their submission was not what statutory procedures would allow. That holding was based on the principle that once the true count of the votes was known, the court should not require an incorrect count to be used. See, e.g., id. at 273,
In this case, local election officials have determined that some absentee ballot return envelopes were rejected in error, either for a reason other than one of the four reasons specified in
Accordingly, we conclude that in the specific and limited circumstances where all parties — the two candidates and the relevant local election officials — agree that an absentee ballot return envelope was erroneously rejected,
We therefore grant in part and deny in part the petition for relief under
DISSENT
Notes
. If the county or municipality has established an absentee ballot board,
. A similar process is to be followed, under the federal Uniformed and Overseas Citizens Absentee Voting Act,
. An "undervote” occurs when a voter fails to mark his ballot for any candidate for a particular office. An "overvote” occurs when a voter marks his ballot for more than one candidate for a particular office. See
.
. The mechanism available under
. Minnesota Statutes
. The summary statements must contain the following information:
(a) the number of votes each candidate received or the number of yes and no votes on each question, the number of undervotes or partially blank ballots, and the number of overvotes or partially defective ballots with respect to each office or question;
(b) the number of totally blank ballots, the number of totally defective ballots, the number of spoiled ballots, and the number of unused ballots;
(c) the number of individuals who voted at the election in the precinct;
(d) the number of voters registering on election day in that precinct; and
(e) the signatures of the election judges who counted the ballots certifying that all of the ballots cast were properly piled, checked, and counted; and that the numbers entered by the election judges on the summary statements correctly show the number of votes cast for each candidate and for and against each question.
. Each county canvassing board must prepare a report that states:
(a) the number of individuals voting at the election in the county and in each precinct;
(b) the number of individuals registering to vote on election day and the number of individuals registered before election day in each precinct;
(c) the names of the candidates for each office and the number of votes received by each candidate in the county and in each precinct, including write-in candidates for state and federal office who have requested under section 204B.09 that votes for those candidates be tallied;
(d) the number of votes counted for and against a proposed change of county lines or county seat; and
(e) the number of votes counted for and against a constitutional amendment or other question in the county and in each precinct.
. It is apparent from the requirements of
. The lack of county canvassing board access to ballots is also illustrated by statutory provisions related to write-in votes. See
. The statute provides: “The election judges shall determine the number of ballots to be counted by adding the number of return envelopes from accepted absentee ballots to the number of signed voter’s certificates, or to the number of names entered in the election register.”
. In their dissents, Justices Anderson and Page express the view that a county canvassing board may make corrections under
I cannot agree that the statute may permit a party to prevail in an election by grace of the belated action of the county canvassing board, voluntarily taken after its official return has been made. The most charitable observation of such a construction is that it permits the party with the most active and persuasive partisans to prematurely gain the advantage of a selective recount.
Id. at 278,
.
. We note that unlike the process prescribed by the legislature in
Dissenting Opinion
(dissenting).
It’s not the voting that’s democracy, it’s the counting.
Tom Stoppard, Jumpers (1972) act I.
I respectfully dissent. I disagree with the majority’s decision to enjoin county canvassing boards from including any previously rejected absentee ballots in the administrative recount. I appreciate the majority’s efforts to see that the results of the election reflect “the true vote of the people.” We all share the goal that the results of this election be accurate. But the majority’s decision to bar county canvassing boards from performing their legal duties — including determining whether the election judges erroneously rejected ballots on election night — does little to achieve an accurate count of validly cast votes. I conclude that the majority opinion misreads Minnesota’s election laws, is internally inconsistent, and improperly gives the candidates significant control over a citizen’s fundamental right to have his or her validly cast vote counted.
It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote and to have their votes counted, United States v. Mosley,238 U.S. 383 ,35 S.Ct. 904 ,59 L.Ed. 1355 . In Mosley the Court stated that it is “as equally unquеstionable that the right to have one’s vote counted is as open to protection ... as the right to put a ballot in a box.”238 U.S. at 386 [,35 S.Ct. 904 ]. The right to vote can neither be denied outright, nor destroyed by alteration of ballots, nor diluted by ballot-box stuffing. As the Court stated in [U.S. v. JClassic,[313 U.S. 299 ,61 S.Ct. 1031 ,85 L.Ed. 1368 (1941) ] “Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted.... The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.
Reynolds v. Sims,
Our review in this case “must be informed by the recognition that ‘[n]o right is more precious in a free country than having a voice in the election of those who make the laws under which, as good citizens, we must live’ ” and that “[o]ther rights, even the most basic, are illusory if the right to vote is undermined.” Erlandson v. Kiffmeyer,
The majority concludes that the erroneous rejection of an absentee ballot return envelope is not an error in “the counting or recording of the votes for an office” and therefore cannot be corrected under
I disagree with the majority on at least three main points. First, I disagree with the majority’s definition of “counting or recording of the votes for an office.” Second, I disagree with the majority’s con
The majority’s result is based, first, on an exceedingly narrow definition of the phrase “obvious errors in the counting or recording of the votes for an office” as used in
Second, there is no indication in
“Canvass” is not defined in Minnesota law, but Black’s Law Dictionary provides two definitions relevant here — '“to examine in detail; scrutinize” and “to formally count ballots and report the returns.” Black’s Law Dictionary 220 (8th ed.2004). In addition, Black’s provides a very relevant example:
When all the ballots have been collected, including those of the presiding officer, the secretary, and the tellers, the ballots are canvassed by the tellers. Canvassing the ballots means more than just counting. It includes evaluating ballots to identify those that are invalid, blank, cast for illegal nominees, illegible, abstaining, and the like, and reporting the total results to the presiding officer for his announcement of the results.
Furthermore, the county canvassing boards are to canvass “the general election returns delivered to the county auditor.” The majority announces that “returns” means “the results of the counting of votes in the precinct, as recorded on precinct summary statements required by statute,” noting among other things that on election night precinct judges are to complete “summary statements” and place them in an envelope labeled “Summary statements оf the returns of the ... precinct.” In other words, the majority limits the meaning of election “returns” to the summary statements filled out by election judges on election night.
But a “summary” of something is not the thing itself. Minnesota Statutes
Contrary to the majority’s narrow definition of election “returns,” I read subdivision 1 of
What if the election judges miscounted the number of return envelopes from accepted absentee ballots or miscounted the number of names entered in the election register, as a result of which the election judges withdrew ballots from the ballot box unnecessarily? The ballots unnecessarily withdrawn from the ballot box on election night were not counted, and the votes on those validly cast ballots were not recorded, all because of a mistake by election judges. It is difficult to imagine a more “obvious error,” yet under the majority’s definition of “counting or recording of the votes” this is an error that cannot be corrected by the county canvassing board.
Not only is the majority’s narrow construction of “counting or recording” contrary to statute, it is also contrary to our long-standing precedent and to the principles on which that precedent is based. In Andersen, we observed that to hold that the results of that election “must be based on the return that everyone concedes is erroneous would be a perversion of our whole election process in the pursuit of strict adherence to statutes that need not be so strictly construed.” 264 Minn, at 269,
Although the majority finds support for its narrow definition of “errorfs] in counting or recording” in Andersen, I read Andersen quite differently. Again, the majority holds that a county canvassing board lacks statutory authority to consider anything beyond the summary statements filled out by local election officials on election night. Yet our decision in Andersen countenanced county canvassing boards doing far more than that.
Andersen concerned the 1962 gubernatorial election, in which the original tabulation of votes showed Karl Rolvaag as receiving more votes than Elmer L. Andersen. 264 Minn, at 258,
But that is not what happened. At least one county reached the conclusion that there had been an error in “the counting and recording of the vote” based on evidence that the majority excludes from the election “returns.” In Grant County, 31 absentee ballots were not originally counted because they had been “delivered into the hands of the election judges personally instead of being placed in the United States mail,” Andersen, 264 Minn, at 260,
In contrast to the majority’s narrow definition of “counting or recording,” I conclude that an error in rejecting an absentee ballot is an error in both counting and recording a validly cast vote. Errors in “counting” must necessarily include errors in deciding what to count, just as errors in “recording” must necessarily include еrrors in deciding what to record. The erroneous rejection of an absentee ballot is an error in both counting and recording the vote because, if validly cast absentee votes are not counted and votes that have been validly cast are not recorded, the resulting vote totals cannot accurately reflect “the true vote of the people.”
My second area of disagreement with the majority is in its interpretation of the process established by
Rather, according to the majority,
At this point, it is appropriate to give another example of why an obvious error in counting or recording absentee ballots can, and should, be addressed by a county canvassing board before the State Canvassing Board certifies a winner in the United States Senate election. This error in counting or recording appears in the documents submitted to us in this case. Two voters, residing at the same address in a metro area suburb, cast absentee ballots in the November 4 election, but their ballots were rejected. The reason given for the rejection is listed as code number “3.” Code number 3 is described under the “Reason Code Description” as being: “The voter was not registеred and eligible to vote in the precinct or has not included a properly completed voter registration application.” This reason for rejection tracks with
Yet there is evidence, which should have been readily available to the county canvassing board, that these two voters were properly registered to vote. The Secretary of State’s voter identification record shows that both voters were not only registered voters but diligent voters. One has voted in every primary and general election since 1994, as well as a special election and a school board election.
Nevertheless, the ballots of these two voters were rejected, and their votes were not counted. Based on the foregoing information, the election judges’ rejection of these ballots can only be described as the result of an “obvious error in counting or recording.” Not only were their votes not counted for the Senate race, but also they were not counted for any other race for
I have three concluding observations. First, under Minnesota’s election system, county canvassing boards are given considerable authority and discretion to fulfill their duty to accurately count votes validly cast in an election. As indicated above, I conclude that Minnesota’s statutory scheme allows county canvassing boards to correct obvious errors before the State Canvassing Board certifies a winner in any given election. I do not understand why petitioners Norm Coleman, et ah, were so reluctant to have this statutory scheme take its normal course. This process allows the State Canvassing Board to reach a result without excluding votes that are obviously cast in a valid manner.
Second, I am concerned by what I see as an inconsistency in the majority’s opinion, which narrowly construes the term “counting or recording errors” — thus limiting the ability of county canvassing boards to deal with anything other than arithmetic errors — but nevertheless directs two of the candidates to make every attempt to agree unanimously as to what errors in counting or recording have been made in counting absentee ballots. Again, I appreciate the majority’s attempt to see that some of the improperly rejected absentee ballots were counted. But the remedy it has provided was not requested by the parties, and I am not sure it can be properly ordered by the court under
Third, I take issue with the majority’s position to, in essence, assign to two of the competing candidates — Norm Coleman and A1 Franken — -the decision as to which ballots are to be counted, while at the same time forbidding duly appointed election officials from correcting obvious counting or recording errors on their own. The majority holds that if Coleman and Franken agree that an absentee ballot should be counted, then that ballot can be counted; but, if either candidate objects, the objecting candidate has veto power over whether the vote is counted by the State Canvassing Board. What the majority has done is subordinate a citizen’s right
The majority’s directive, which I conclude lacks statutory authority, is particularly troublesome given the sophisticated voter information now available to political candidates and campaigns. Nowadays, it is not unusual for campaigns and political parties to have detailed information on voters, such as what elections — be it general, primary, local, or special — the voter participated in over a period of several years and how the voter responded to polling surveys. From this information, candidates and political parties can create a profile as to the likely party or candidate the voter prefers. The majority opinion has created the likely scenario that the candidates will take the power the majority has handed to them, combine it with their voter information, and use it as a tactical tool in their hard-fought contest for votes.
A decision placing ultimate control over whether a citizen’s vote is to be counted by the State Canvassing Board in the hands of the candidates leads to an untenable result. As the quote at the beginning of my dissent says: “It’s not the voting that’s democracy, it’s the counting.” I conclude that Minnesota has a statutory scheme in place to ensure that all validly cast votes are counted and recorded by local election officials and the State Canvassing Board and which allows that an “obvious error in the counting or recording of the vote” can and will be corrected after the initial canvass is completed. This statutory scheme is in place so that we can “avoid the necessity of an election contest where possible,” Andersen, 264 Minn, at 262,
ADDENDUM
Voting record of first voter:
ELECTION ELECTION
DATE DESCRIPTION
09/14/2004 STATE PRIMARY
11/06/2001 SCHOOL DISTRICT ELECTION
11/06/2002 STATE GENERAL ELECTION 09/10/2002 STATE PRIMARY
11/02/2004 STATE GENERAL
09/12/2000 STATE PRIMARY ELECTION
11/07/2000 STATE GENERAL
09/15/1998 STATE PRIMARY ELECTION
11/03/1998 STATE GENERAL
09/10/1996 STATE PRIMARY ELECTION
11/05/1996 STATE GENERAL
11/07/1995 SCHOOL BOARD ELECTION
09/13/1994 STATE PRIMARY ELECTION
11/08/1994 STATE GENERAL
07/13/1993 SPECIAL ELECTION
11/04/2003 GENERAL ELECTION
09/12/2006 STATE PRIMARY
11/07/2006 STATE GENERAL
09/09/2008 STATE PRIMARY
Voting record of second voter:
ELECTION ELECTION
DATE DESCRIPTION
09/14/2004 STATE PRIMARY
11/06/2001 SCHOOL DISTRICT ELECTION
11/05/2002 STATE GENERAL ELECTION
09/10/2002 STATE PRIMARY
11/02/2004 STATE GENERAL
11/07/2000 STATE GENERAL
09/15/1998 STATE PRIMARY ELECTION
11/03/1998 STATE GENERAL
11/05/1996 STATE GENERAL
09/13/1994 STATE PRIMARY ELECTION
11/08/1994 STATE GENERAL
11/04/2003 GENERAL ELECTION
09/12/2006 STATE PRIMARY
11/07/2006 STATE GENERAL
09/09/2008 STATE PRIMARY
. Minnesota Statutes
The election judges shall determine the number of ballots to be counted by adding the number of return envelopes from accepted absentee ballots to the number of signed voter’s certificates, or to the number of names entered in the election register. The election judges shall then remove all the ballots from the box. Without considering how the ballots are marked, the election judges shall ascertain that each ballot is separate and shall count them to determine whether the number of ballots in the box corresponds to the number of ballots to be counted.
. The majority disagrees with characterization of this arithmetic check as “rough," noting that
. I acknowledge that, as the majority points out, county canvassing boards are authorized under
. The court's limited definition of "counting or recording” necessarily applies not just to
. The provisions of Minnesota election law applicable to the 1962 election were not substantially different from those applicable to this election. The statute prescribed how many ballots election judges were to count on election night. See
. Not only did one of the ten counties correct an error in "counting or recording" of the votes by counting and recording ballots that had not previously been counted, but another of the ten determined that an error had been made in counting or recording of the votes based on the affidavits of two election judges. Andersen, 264 Minn, at 260,
. See Addendum for voting record of first voter.
. See Addendum for voting record of second voter.
. I note that under
. I acknowledge that in its order of December 18, 2008, the majority recognized this potential problem and reminded the parties of "their obligations under
Nevertheless, I do not believe that reminder has necessarily prevented the problem that I anticipated would arise.
Dissenting Opinion
(dissenting).
I join in the dissent of Justice PAUL H. ANDERSON.
DISSENT
PAGE, Justice (dissenting).
I join Justice Paul Anderson’s dissent. I write separately to briefly make four additional points and to emphasize three points made by Justice Anderson. The four additional points I want to make are:
1. The court misconstrues the meaning of Andersen.
While the court cites to In re Andersen,
Further, to the extent that the court relies on the statement in Andersen that the parties agreed that the election results were erroneous, I note that the parties in Andersen, while agreeing that there were errors, disagreed over what the errors were and the process to be used to correct them. Andersen, 264 Minn, at 258-59,
To the extent that the court relies on the fact that the parties in Andersen objected to the State Canvassing Board counting amended results submitted by county canvassing boards because of “technical irregularities in arriving at the result rather than on a claim that the results are not right,” id. at 272-73,
Finally, to the extent that the court relies on Andersen for the proposition that the phrase “obvious error in counting,” as set forth in
In the end, the Andersen court permitted all identified errors to be corrected and rejected the attempt of one of the parties to distinguish between the types of errors to be corrected. 264 Minn, at 270,
2. Election statutes should be interpreted to avoid absurd results.
Applying our rules of statutory construction, we construe statutes to avoid absurd results. State v. Clark,
The court counters that the legislature could have implemented the process as a safeguard to ensure that the most vocal
Thus, while I agree that the rationale for the legislative changes was partly intended to limit undue influence on county canvassing boards, that fact has no bearing on this case. Before Andersen, the statute permitted county canvassing boards to unilaterally correct any obvious error when four of five canvassing board members so chose. After Andersen, the legislature amended the procedures to be followed when correcting obvious errors. But while the legislature changed the procedures to be followed, the legislature did not change or otherwise limit the scope of counting and reporting errors that could be corrected. Absent an express change in scope, our rules of construction lead inescapably to the conclusion that, as was the case before the amendments, the scope of correctable obvious errors goes beyond computation and recording of numbers and includes any and all obvious errors in counting and recording.
3. The court implicitly concedes that counting includes the process of determining which absentee ballots are to be included in the county canvassing boards’ reports.
The opinion reads, “[w]e begin by briefly reviewing the statutory provisions for processing of ballots.” (Emphasis added.) The court’s not-so-subtle effort to avoid using the word “counting” to describe which absentee ballots are to be included in the count for purposes of reporting the number of votes cast for the office, fails. A rose, by any other name, is still a rose. The process of determining which votes to include in the count of votes to be reported, by any other name, is the process of counting. As such, obvious errors in that process come within the scope of “obvious error in counting and reporting” as used in
In detailing the counting process, the court notes that a recount’s purpose is “to ensure that the votes cast in [an] election [are] accurately counted.” The court then defines the scope of reviewable errors that may be corrected in a “recount” as errors
4. Minnesota Statutes
The court concludes that counties cannot correct obvious errors under
The court here correctly notes that in Andersen we stated that under any construction of the existing statute, there should be a cutoff point at the time the state canvassing board met. Id. at 263,
The three points made by Justice Anderson in his dissent that I want to emphasize are:
1. The question presented by this case.
The question presented by the parties is whether obvious errors by local election officials in rejecting validly cast absentee ballots in the initial counting of the votes cast for United States Senator in the November 4, 2008, general election can be corrected using the procedures set out in
2. Election statutes are to be liberally construed.
We are to liberally construe Minnesota’s election laws, guided by the principle that “[statutory regulations of the election franchise must be so construed as to insure, rather than defeat, full exercise thereof when and wherever possible.” Flakne v. Erickson,
Here, instead of liberally construing the term “obvious error in counting” to ensure the full protection of the voting franchise, the court, applying a narrow construction,
Finally, in Andersen, we considered whether to permit correction of “obvious error in counting and recording,” even though the statutorily prescribed timeline had not been followed. 264 Minn, at 261-62,
Here, by its narrow construction of the phrase “obvious error in counting,” the court’s decision works to defeat, not ensure, the full exercise of the voting franchise.
3. The right to vote is fundamental.
“No 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.” Wesberry v. Sanders,
. As an aside, because there is nothing political about a number that is transposed or subtracted instead of added, I again question why there would be a need for the legislature to create such elaborate procedures for the correction of mere computation and reporting errors. That need is understandable, however, if, contrary to the court’s suggestion, the scope of the errors that can be corrected includes more than computation and recording errors.