*1 test on the basis chemical Netland’s COLEMAN, ah, Petitioners, et Norm test, and his breath deficient
Netland’s manipu- trying to that Netland belief v. requested Netland late machine. Secretary RITCHIE, Minnesota Mark Hagen from Officer alternative test State, The Minnesota State Canvass agency to conduct private then hired a County Canvassing ing Board, Isanti the events surround- Although urine test. Board, al., Respondents, et could fall under ing her test breath in this penalty, facts civil refusal test Franken, and Al Al Franken for Senate any evidence of refusal case do not contain Intervenor-Respondents. inadequate samples, breath than No. A08-2169. test, testimony that deficient breath provide an ade- trying Netland was Minnesota. Supreme Court of inadequate sample or An quate sample. March test, which constitutes a breath deficient statute, the civil test refusal refusal under for a factfinder
cannot the sole basis the criminal test refusal statute
also find go differently hold would
was violated—to plain wording the chemical
against the
tests intoxication statute. affirm, grounds,
I on different would
court decision reverse the appeals’ test
district court’s conviction criminal
refusal.
PAGE, (dissenting). Justice join Meyer.
I in the dissent of Justice (dis-
ANDERSON, H., Justice PAUL
senting). join Meyer.
I of Justice dissent Netland, rately measuring alcohol concentration nal refusal statute. test would crimi- Reviewing the issue for sufficien- her breath. This constitute 221 n. 5. evidence, appeals cy nal test as the court of con- the court refusal concluded statute, I have jury believed strued the but articulated would have to assume that testimony standard criminal test refusal Hagen’s that Netland was narrower Officer appeals. prevent accu- than the court of attempting to the machine from *2 of Minneso- Senator from the State
States order, the court to ta. Petitioners asked rejected ab- among things, that no *3 in the adminis- ballots be counted sentee underway then and that all trative recount raised, if to such ballots be issues related all, Minn. in an election contest under (2008). expedited brief- ch. 209 After Stat. argument on ing, the court heard oral impede December 2008. So as election, orderly administration of Langdon, Magnuson, James K. Roger J. on December the court issued order Rock, LLP, Whitney Min- Dorsey & John 2008, granting part denying part and Trimble, Minnesota; neapolis, Tony and P. opinion to follow. petition, Trimble & Associ- Haapoja, Matthew W. ates, Minnetonka, Minnesota, Ltd., pe- for return At issue here are absentee ballot rejected by elec- titioners. that were local day. tion officials on and before election Swanson, General, Attorney Christ- Lori is voting by absentee ballot process General, Eller, Attorney Ken- Deputy ie B. (2008). ch. 208B governed by Minn.Stat. Jr., Attorney Raschke, Assistant neth E. for application A makes voter first written Paul, Minnesota, General, respon- St. § 208B.04 an absentee ballot. MinmStat. Ritchie, Secretary Minnesota Mark dents (2008). provided An absentee ballot State, State Canvass- and Minnesota voter, along envelope with a ballot ing Board. § envelope. a return Minn.Stat. 203B.06- County Freeman, Hennepin Michael O. (2008). marks .07 The voter the ballot Diamond, Assistant Attorney, Patrick C. votes, places with his the ballot Minnesota, Attorney, Minneapolis, County envelope, places sealed bal- ballot County Hennepin Canvass- respondent (and a envelope registration ap- lot voter ing Board. needed) in the return en- plication, where Pentelovitch, Mary Vasaly, Z. William velope. See 203B.08 Brand, LLP, Edelman Borman & Maslon in his on The voter fills name address Minnesota; L. Lille- David Minneapolis, envelope, completes return a certifi- By- haug, Kaplan, Z. Fredrikson & Steven eligibility cate of to vote absentee ballot ron, Minnesota; P.A., Minneapolis, printed envelope, signs the return on Elias, Hamilton, Marc E. Kevin J. Perkins the certificate before a witness who also LLP, D.C., Washington, for interve- Coie signs envelope. See Minn.Stat. return nor-respondents. 203B.07, envelope return subd. 3. The (containing envelope the ballot in which OPINION placed) ballot has been completed auditor or then returned MEYER, Justice. 203B.08, municipal clerk. Minn.Stat. Coleman, Norm Cullen Shee- Petitioners han, petition and Cara Beth Lindell filed 203B.12, Under Minn.Stat. petition pursuant and an amended (2008) ex- judges or more election two concerning 204B.44 4, 2008, envelope and mark it amine each return election for United November “rejected.”1 “There is “accepted” rejecting either no other reason for Rejected are to mark the return absentee ballot.” absentee ballot if are envelope “accepted” they satisfied return envelopes unopened are returned auditor, that all following four conditions the county they and the ballots met: are contain are not counted on night. (1) the voter’s name and address envelope the same as 18, 2008, On November the Minnesota information on the provided (Board) State Canvassing Board met to application; ballot certify the results the election held on *4 (2) signature the voter’s on the return November 2008. Because the difference genuine envelope signature is the of the in votes cast for U.S. Senate candidates application
individual who made the for Norm Coleman and Al Franken was less ballot, an absentee and the certificate than percent, one-half of one the Board eligibility to vote absentee ballot has ordered an automatic manual recount as been completed prescribed the di- required by 204C.35, § Minn.Stat. subd. ballot; casting an rections for absentee 1(b) (2008). (3) registered eligible voter According minutes of the Novem precinct vote or has included a meeting ber 18 of the State Canvassing properly completed registration voter Board, representative of Al Franken and application envelope; in the return the A1 for campaign Franken Senate urged (4) already the voter has not voted in the Board rejected to review all absentee election, that person either in ab- ballot return envelopes and include in its sentee ballot. recount any the votes of absentee ballots If envelope Id. the absentee ballot return rejected. were improperly This re “accepted,” opened it is and the ballot quest opposed by representatives of envelope placed separate inside is Norm Coleman and the Norm Coleman for 203B.12, § ballot container. Minn.Stat. campaign. Senate advance the No (2008). subd. ballot con- absentee meeting, Secretary vember 18 of State night, tainer is opened election the bal- had opinion received an of the Minnesota lot envelopes opened, inside are and the Attorney General’s Office that absentee enclosed ballots are and deposit- removed rejected by ballots that were ed the ballot box to counted. 203B.12, judges under Minn.Stat. subd.
If, hand, on the other of the four were not “cast” in the election and requirements scope under section 203B.12 therefore not were within the of an met, not been the election are to recount administrative under Minn.Stat. (2008). “rejected.”2 mark the return envelope subd. 3 At its Novem 203B.12, 26, 2008, Section meeting, subdivision states: Board unani ber followed, county municipality If the process has established 2. A similar is to be board, absentee ballot the federal Uniformed and Overseas Citizens 203B.13, (2008), subd. allows the absen- Act, Voting §§ Absentee 42 U.S.C. 1973ff- begin examining tee ballot board return (2000, Supp. Supp. 1973ff-6 & III 2003 IV envelopes marking “accepted” them 2004), respect absentee ballots cast "rejected” during days the 30 before elec- serving voters who are overseas or board, tion. If no there is absentee ballot 203B.16, military. §§ See Minn.Stat. absentee delivered to local election 203B.24, subd. day. officials on 203B.08, the results of campaign’s 204C.39 before the Franken rejected mously Finally, citing opinion our Board’s were finalized. scope request as outside 257, 119 authority under Minn.Stat. in In re 264 Minn. statutory (2008). However, Attorney 2040.33, N.W.2d 1 General’s likely Attor opinion would opined Office court requested Board by what tо whether and the State Can ney uphold a determination General re accept reports were vassing means absentee ballots Board to amended statutory reasons one the four includ jected from boards that initially could be tabulated. im ed ballots that were absentee rejected by officials properly local election 2, 2008, December On or around errors. due administrative elec Office asked local Secretary State’s reject all previously to review officials 12, 2008, meeting, At its December envelopes ed ballot by a Board was advised Canvassing State the number of determine Secretary representative of State each the four reasons were municipalities that in the 49 counties *5 203B.12, § 2. in Minn.Stat. subd. provided completed that thus far their volun- had Secretary local The of State’s Office asked tary sorting reported results officials to determine as well the State, 4,823 Secretary there of were ballot return envel number of absentee rejected envelopes, return absentee ballot other than opes rejected for some reason of which 638 had determined local been in provided one the reasons of improperly to have election officials been 203B.12, 2, § local elec subd. because However, rejected. had de- some counties in concluding mistaken officials were voluntary in sort- participate clined to satisfy envelope failed that the ballot unanimously ing process. The Board rec- more in section one or conditions ommended, order, but that all declined to 203B.12, Secretary subdivision The rejected canvassing boards review in more detailed provided State’s Office envelopes for the absentee ballot return process on De sorting structions identifying purpose obvious errors 4, cember ballots, correcting rejection those By of the State letter to members errors, reporting those new vote totals 10, Canvassing Board dated December Canvassing to the State Board. Attorney the Minnesota General’s petition The petition and amended statu Office identified described four 15, 2008. this case were filed on December correcting tory mechanisms for petition alleged the State Can- process: the election correction of errors Board failed to uniform vassing provide part by county election officials as guidance to the counties on how to deter- process under Minn.Stat. (2008) mine not an absentee ballot whether or § 204C.38 where candidates envelope improperly rejected. was Minn. agreed; correction errors under (2008) petition guid- alleged further § candi Stat. 204C.39 where the Secretary given ance to counties agree; petition dates did filed 204B.44; previously sorting an election con State’s Office for rejected in- ch. 209. The Attor absentee ballot test under Minn.Stat. incorrect, complete can in the ney opined resulting that local General’s Office stan- applying could their election various counties different vassing officials amend petition previ- dards. The asserted that returns under either section 204C.38 ously validly absentee ballots should be absentee ballots were cast for addressed, all, if at in an election contest office await an election contest under part ch. and not as under Minn.Stat. Minn.Stat. ch. 209? process.
of the recount A1
A1 Franken and the Franken for I. asserted, in campaign opposition Senate begin briefly We reviewing the petition, county canvassing boards statutory provisions for processing bal authority have the under Minn.Stat. election, lots in an as prescribed in Minn. decision Andersen and our 204C.39 Stat. ch. 204C uncounted ballots and cor- review Under Minn.Stat. rect errors exclusion those bal- (2008), local election officials first deter- lots. mine the number оf ballots to be counted We issued order on December night by adding the number granted and denied in part return envelopes from accepted absentee petition. agreed part peti- We ballots to signed the number of voters’ that improper rejection tioners of an ab- certificates, or to number of names envelope ballot not within sentee entered in register. the election Proce- subject of errors scope correction dures prescribed situations during an ad- which there are more ballots the ballot proceeding recount under ei- ministrative box than the number of ballots to ther Minn.Stat. 204C.39. Id., counted. 2. Once the votes *6 that, we Separately, observed where local contained on the ballots have been count- agreed election officials and the candidates ed, judges summary the election prepare a envelope that an absentee ballot (1) statement reports: that the number improperly rejected, was correction of that (2) received; votes each candidate the not await error should have to an election number of “undervotes” and “overvotes” any We that contest. therefore ordered (3) office;3 totally for each the numbers of envelope ballot return local blank, defective, totally spoiled, un- officials agreed and the candidates (4) ballots; used the number of individuals rejected in opened by error should who in precinct; voted at the election the its local election officials and ballot count- (5) regis- the number voters who ed, subject challenge either candi- day tered on in precinct. the intent, date to voter in accordance with (2008). 204C.24, § Minn.Stat. subd. procedures respect the used with to all These are precinct the “returns” transmit- in ballots reviewed the recount. county ted canvassing to the boards question on before us Dеcember through county the auditors. rejected was whether improperly ab- ballots, along any counted with de- scope sentee ballots are the within of er- ballots, subject fective and county rors to correction can- blank sealed delivered, vassing envelopes together the may boards filed in an with summary returns, report amended statement of to the Minn.Stat. 204C.25, § § county §§ or Put differently, 204C.39. auditor. Minn.Stat. (2008). 204C.28, the § must resolution of whether .27 Minnesota Statutes 3. An "undervote” when a voter voter one occurs fails to marks his ballot for more than partic- his ballot particular mark candidate for a candidate for a office. See Minn. 204C.24, 1(a) (2008). § ular office. An when a Stat. "overvote” occurs subd. statutory are two mechanisms county auditor There bars
subd. county cor- canvassing boards which envelopes containing the opening from rect errors made local election officials. ballots themselves. applies candi- One mechanism where the general days the state seven Within occurred, agree an error dates has county canvassing election, respective not applies where the candidates do general elec- canvass boards meet agree. by local election offi- delivered tion returns § 204C.38 provides Minnesota Statutes county respective auditors. cials that if the candidates for an office unani- 204C.33, At Minn.Stat. agree in mously writing Minnesota law process, stage county in a or a judges particular precinct canvassing open county allows canvassing made “an obvious board containing the ballots them- envelopes in the counting recording error returns that were only to retrieve selves office,” county votes for that canvass- inadvertently sealed “as ing board “shall” correct error 204C.28, subd. 1. Minn.Stat. ballots. specified agreement.” [candidates’] canvass, the coun- Upon completion of 204C.38, subds. 1 and repоrts to the ty canvassing board statute, Thus, by terms of the (1) the of individuals vot- number auditor: agreement an error of the candidates that (2) county; the election recording counting occurred registered to vote of individuals binding number votes (3) the names of the precinct; each board. and the number
candidates for each office agree, If the Minn. candidates do by each candidate in the of votes received 204C.39, allows Stat. county. subd. 1. by majority board determine copies Certified that election made vote “an obvious by the reports are then transmitted the votes error Secretary of auditors to the State. for an office.”4 But the statute does not *7 summary are trans- Id. These statements county canvassing authorize the board legislature Instead, the envelopes unilaterally. mitted correct such errors 204C.39, requires “Election Re- the requires labeled: section subdivision county canvassing can- notify turns.” Minn.Stat. board to the 204C.39, alleged in which for an 4. Section subdivision reads the error made determining order or an obvi- follows: whether applicant ous has been error made. The county canvassing may deter- A board alleged appli- the shall describe error in the by majority vote the mine election may cation and additional evidence submit judges an have made obvious error by applicant the as directed court. The counting recording or the votes for an of- notify county canvassing shall the board fice. The board shall and all candidates for the affected office promptly notify all then candidates for that by the manner directed the If the court. determination, including of the a de- office judges the an court finds that election made scription who of the error. A candidate specify- obvious error it shall issue an order pursuant to this receives notification subdi- ing directing the can- error who believes that vision or candidate vassing inspect bоard ballots judges precinct the election have made precinct in order correct counting returns of the or an obvious error in record- may proceed error accor- apply an and to further in of the votes for office delay dance as the to the district with this section otherwise without unreasonable precinct may county containing court direct. court of 1(b) (2008). error didates of its determination that an It is this automatic manual Any been made. candidate re- has who by recount was ordered the State notice, such a ceives who otherwise Canvassing Board at its November judges in particular believes that election 2008, meeting. have made an obvious precinct error 204C.35, Section subdivision limits the an votes for an scope of administrative recount “to the office, may apply to the district court determination of the number of votes val- determining order idly cast the office be recounted. error made.
whether obvious has been Only the ballots cast in the election and If Id. the court finds that an obvious summary by statements certified made, has been it directs error judges may be considered in the inspect board to the ballots process.” Thus, recount the scope of the precinct to correct error. order errors that as a corrected result of ballots, After inspecting the coun- recount limited to errors in “the ty canvassing files an addendum determination of the number of votes val- reflecting initial report its the total num- idly time, for the cast office.” At the same ber votes received each candidate for the information to those available conduct- Id., office. ing the recount only is also limited: Tuesday the second following On actually cast the election and the election, general state State Canvass summary statements certified the elec- ing Board meets to canvass the certifiеd judges night are to be copies the returns of the can considered. vassing boards. Minn.Stat. those reports, 204C.361(a) Based on (2008) Minnesota Statutes report prepares Board num stating the requires Secretary adopt of State to ber individuals who voted in the state procedures, uniform recount and requires (county-by-county) and the number of that all recounts be conducted in accor- votes received each of the candidates dance with those Under rules. Minn. R. (county-by-county). Id5 8235.0700 the materials available during the recount administrative are the
The Minnesota has estab- summary statements prepared statutory procedures lished two for resolv- night on election and the sealed ing disputes concerning the outcome ballots, although of voted elections: a manual administrative recount *8 are to upon request. materials be available § under Minn.Stat. 204C.35 elec- and an recount, During envelopes the sealed tion contest under Minn.Stat. ch. 209. of are opened ballots inside A manual is administrative recount recounted accordance with Minn. intended to ensure that the cast in votes (2008) § (providing Stat. 204C.22 stan- accurately election were counted. intent). dards for voter determining margin victory When of an election (2007). Minn. R. 8235.0800 percent, is than of one less one-half as election, in this a statutory manual recount is The other procedure estab 204C.35, § automatic. subd. resolving Minn.Stat. lished elec Canvassing 5. The mechanism available under Minn.Stat. State Board well. as Minn.Stat. § § 204C.38 Canvassing error[s] for correction of subd. State “obvious 3. The boards, Board, counting recording vote[s]” of the like the is bound agree applies agreement which the candidates to the of the candidates. pro- under the office await an election contest an election contest disputes is under ch. 209. Peti- ceeding Minn.Stat. In contrast to the ch. 209. Minn.Stat. prevent the State Canvass- recount, tioners seek administrative scope of an limited in its ing including from recount Board chapter under an election contest from any certification amended results irregularity over an brought “may be canvassing boards determined election or canvass of of an conduct had that absentee ballot of received votes, question who over rejected by local improperly been election cast, legally of votes largest number first whether there officials. We consider deliberate, seri ... of grounds or on the Canvassing authority is the State ous, of the Minne and material violations accept Board to such amended election 209.02, § Minn.Stat. sota Election Law.” returns, turns which in case on (2008). county canvassing boards to authority of must contest be Notice an election stage at this amend their returns after days within served and filed seven is, process after the State —that the canvass. Minn.Stat. completion of Canvassing origi- has canvassed the Board (2008). 209.021, § In the case of mandatory nal returns and a administra- office, the notice election for statewide way. tive is recount under Ramsey must filed in of election contest be 10 letter from the Attor- December Id., subd. 2. The County District Court. ney Office to the State General’s Canvass- judges, panel case heard of three is ing Minn.Stat. opined Board is con- 209.045 Minn.Stat. is an mechanism for 204C.39 available ducted, a civil practicable, as far as is rejections correction erroneous (2008). trial, 209.065 When envelopes. absentee ballot return As de- congres- election contest concerns earlier, per- scribed office, only question to sional be decid- mits boards that highest ed which candidate received the can- already reported the results their legally of votes cast the elec- number Canvassing vasses to the State Board to tion. Minn.Stat. 209.12 Never- counting “an error in the identify obvious theless, speci- evidеnce on other issues provides of the votes” and fied contest is notice process by which errors can cor- such be preserved presid- and forwarded to the Thus, a rected. threshold issue the case Rep- officer the Senate or House rejection of an whether erroneous States, resentatives the United envelope absentee ballot return case be. Id. “an night is obvious error in recording of that can the votes” II. con- addressed section 204C.39. We statutory background, With this we turn clude that it is not. question of whether re- improperly jected authority absentee ballots are within the *9 scope subject by a is limited to of errors to correction section 204C.39 county canvassing under Minn.Stat. correction of in the error[s] “obvious 204C.39, § counting recording or must the resolution of or the votes.”6 We writing are validly whether those ballots cast for not on blank slate deter- were similarly recording counting § Minnesota 204C.38 the of the votes.” Statutes is limited to of "an obvious error in correction
227
by
the
mining
legislature
envelope,
what
meant
“ob-
but
envelopes
those
are
part
“returns”
counting
by
made
errorfs]
vious
precincts.
have
We
defined
Andersen,
“returns”
interpret-
votes.” In
of the
we
“an official
statement
votes cast
an
at
phrase
predecessor
same
in a
stat-
ed the
election, transmitted to some authorized
(1961).
204.30,
ute,
1
Minn.Stat.
subd.
custodian,
the purpose
of being can-
explained: “The term
error’
We
‘obvious
by
proper
vassed
authority.”
some
State
in our
as used
statute is one that defies
Council,
ex
Thompson
rel.
v. Common
definition.
only
exact
About the
definition
**
106, 108-09,
Minn.
1878 WL
at
given
that can be
to it is that
error
some
(1878). Therefore,
context,
in this
“re-
evident
an
appears
examination
from
by
turns”
precincts
made
means
by
pre-
the returns made
the various
results of the
of votes in the
cincts.”
precinct,
precinct
as recorded on
summary
added).
(emphasis
This inter-
rеquired by
statements
statute.
This
pretation limiting
scope
sub-
of errors
statutory process
confirmed
and the
ject
correction
use
of “returns”
those statutes.
boards to those “evident from an examina-
the returns
tion of
made
the various
votes
After the
marked on the ballots
statute,
precincts” applies to the current
counted,
precinct
been
election
204C.39,
application
section
as well. This
judges are directed to “write the number
presumption
on the
“when a
place
based
on
proper
summary
state-
(2008).
court of last resort
the lan- ments.” Minn.Stat.
has construed
law,
precinct
judges
The
required
are
guage
in subse-
copies
three
complete
summary
of the
quent
subject
laws on the
intends
matter
statements,
204C.24,
Minn.Stat.
upon
the same construction to be placed
(2008),7
each
completed
set of
sum-
645.17(4)
language.”
such
mary
placed
statements is then
en-
sealed, id.,
velope and
subd. 2. These
then,
question,
is whether
error
envelopes
required
to be
labeled
rejection
“appears
of an absentee ballot
“Summary statements
returns of
evident from an examination of the returns
... election precinct.”
(emphasis
add-
by the
precincts.”
made
various
Determi-
ed).
containing the sum-
of whether an
nation
absentee ballot was mary
returns, along
statements of the
correctly rejected
require
would
examina-
separate
envelopes containing
sealed
tion,
minimum,
aat
ballot
ballots counted and the blank
spoiled
(d)
summary
7. The
statements
contain the
registering
must
the number of voters
on
following information:
day
precinct;
in that
(a) the number of votes each candidate re-
(e)
signatures
judges
of the election
yes
or the
ceived
number of
and no votes on
certifying
who
all
counted
question,
each
the number of undervotes or
properly piled,
of the ballots cast were
ballots,
partially blank
and the number of
counted;
checked, and
and that the num-
partially
overvotes or
defective ballots with
bers entered
respect
question;
to each office summary
correctly
statements
show the
ballots,
(b)
totally
the number of
blank
number of votes cast for each candidate
ballots,
totally
number of
defective
against
question.
and for and
each
ballots,
spoiled
number
the number
ballots;
of unused
(c) the number of
who voted at
individuals
*10
precinct;
the election in the
(see
7, supra) and the
precinct
the
elec-
statements
footnote
by
ballots, are delivered
county
composite
office
information that Minn.Stat.
to the
auditor’s
1,
(or
204C.33,
municipal
requires county
§
clerk for transmittal to
can
subd.
office).
Indeed,
§ 204C.27 vassing
report.8
Minn.Stat.
auditor’s
report
county canvassing
required
board
204C.33,
1,
sent
by section
subd. must be
then meet
county canvassing boards
envelope
of
in an
Secretary
to the
State
election returns
general
to “canvass
“Election Returns.”
labeled
Minn.Stat.
county
Minn.
to the
auditor.”
delivered
§ 204C.37.
204C.33,
1. The “returns”
subd.
Stat.
summary
precinct
in the
are the numbers
Thus,
of
“canvass”
“returns”
been delivered
that had
statements
is
narrow
county canvassing
board
auditor,
simply
county
and the “canvass”
compilation
report
process, limited
and
reporting of
those
compilation
ing
precinct
of numbers contained
Thompson,
rel.
State ex
numbers. See
summary
scope
This
statements.
limited
108-09,
3561, at **2
1878 WL
at
hold
long-standing
is consistent with our
(“With
analogies
of our
reference to
that the function of
statutory
respecting the can
law
general
returns is ministerial. See Hunt v. Hoff
elections, the
votes
word
vassing of
cast
733,
man,
254,
249,
125 Minn.
N.W.
meaning
taken
entitled to be
‘returns’ is
(1914) (citing
Colby,
v.
O’Ferrall
of votes cast
an official statement
(Gil.148)(1858)).
Minn. 180
election, transmitted to some authorized
This ministerial function
custodian,
can
being
for the
purpose
only
pre-
the returns entails review
authority.”); see
proper
some
vassed
returns,
summary
cinct
statеments
Harris,
138,
122 Minn.
141-
v.
also Moon
Although
of actual
(1913)
examination
ballots.
(referring
13-14
N.W.
ballots,
precinct’s
each
well as
“returns,”
counted
separately to “ballots”
ballots,
spoiled
their blank and
are deliv-
“The official returns are evidence
stating:
county
along
ered to the
auditor
is that
presumption
of the
cast. The
votes
summary
returns,
an accu
each
they correctly state the result of
statement
ballots.”).
separate
envelopes,
rate
This is also
sealed
count
county canvassing
has authorized the
symmetry
evidenced
between the
204C.24,
only
summary
boards to have access
information
Minn.Stat.
summary
precinct
in the
statements.9
Minnesota
Statutes
requires
subd.
(d)
prepare
of votes counted for and
8. Each
must
number
against
proposed change
county
report
lines
that states:
seat;
(a)
voting at the
the number of individuals
(e)
number
votes counted
for
precinct;
in the
and in each
against
oth-
a constitutional amendment or
(b)
registering
the number of individuals
question
pre-
er
and in each
day and
vote on election
the number of
cinct.
registered
day
before election
individuals
204C.33,
Minn.Stat.
precinct;
each
(c)
requirements
the names of the candidates
each
apparent
It
from
office and
number
votes received
de-
204C.28 that the ballots are
county and in
each candidate in the
each
auditor so
is a
livered to the
there
precinct, including
repository
safe-keeping
write-in candidates for
central
of those
materials,
requested
who have
their in-
state and federal office
rather than
facilitate
spection by canvassing
example,
under section 204B.09 that votes for those
boards. For
tallied;
provides
candidates
*11
204C.28,
1, provides
envelopes
access
those
part
“[t]he
to
as
of their
may
canvassing
[containing ballots]
be ministerial
function.
envelopes
by
county canvassing
if
opened
board
addition,
given both the narrow scope
returns that
necessary
procure
to
election
of returns and
of
the ministerial function
may
judges inadvertently
have
the election
boards,
county canvassing
not surpris-
is
envelopes
in
sealed
with the ballots.”
legislature
that the
limited the errors
only
By providing
purpose
county
canvassing
boards
ad-
may open
which
dress under section
envelopes containing
the sealed
ballots is
votes,”
“counting
as
returns,
not for
retrieve the election
just
that is
what
precinct
is reflected in the
ballots,
to the
made
access
summary
of
statements
returns that
(a)
it clear that
the “election returns” are
only
boards review. Not
are errors in the
something different than the
deliv-
ballots
rejection of absentee ballot return envel-
(b)
county auditor,
ered to the
that the
opes not evident from an
examination
normal function
returns,
they are not errors in “count-
inspection of
boards does not include
ing or recording of the votes.” Absentee
ballots, which
are
remain
sealed en-
envelopes
ballot return
that have been re-
velopes.10
jected,
wrongly,
rightly
by
local election
204B.39,
Returning to section
stated
opened
officials are not
on election night
“obvious
means
error[s]”
therefore their votes have not been
“appear[]
rejected
those
evident from
ex-
“recorded.”
Neither
absentee
by
amination of
made
envelopes
the returns
the vari- ballot
included in the number of
ous
precincts.”
119 ballots to be counted under Minn.Stat.
seen,
204C.20,
statute,
at 5. As we
have
the re-
subd. 1.
Under
precincts
only
turns made
means
the number of ballots to
be counted
reported
summary
the numbers
on the
night
is the sum of the
number
rejection
statements. An error in
of an
register
names entered
the election
be
absentee ballot would not
evident from the
number
return
from ac-
reports,
cepted
those
fact could not be
absentee ballots.11 Bеcause errone-
examination,
determined
mini-
rejection
without
at a
ous
of an absentee ballot envel-
mum, of
ope
absentee ballot
envel-
is not evident from an
examination
ope.
suggestion
There is no
stat-
the returns and because
recorded,
county canvassing
utes that
ballots are neither counted nor
board,
record
all
"[a]ccess
materials deliv-
not
[of
but
auditor.
strictly
shall be
ered]
controlled.
Accountability and a record of
be
access shall
provides:
judges
11. The statute
“The election
during
maintained
auditor
or,
shall
number
period
contesting
determine the
of ballots to
elections
if a contest
filed,
by adding
counted
finally
the number
return en-
until the contest
de-
has been
velopes
accepted absentee ballots to
from
termined.”
certificates,
signed
number
voter’s
to the
reg-
lack
board ac-
number of names
entered
204C.20,
by statutory
cess
ballots is also illustrated
ister.”
1. The
provisions related to
write-in votes. See
fact that subdivision
of section 204C.20
requested
requires
randomly
subd. 1. If
remove
discrepancy
under Minn.Stat.
204B.09
the board
if a
cannot
ex-
excess ballots
votes,
required
report
plained
write-in
which are
Justice
contradicts
Anderson’s dis-
precinct.
counted at
Id. But the
sent’s
characterization
subdivision 1
provides
merely "rough
statute
for those votes to be counted
arithmetic check.”
*12
rejection
made in
of absentee
of an absentee bal-
been
the
rejection
the erroneous
provided
by
is not
section
scope
the
of ballots
envelope is outside
lot return
204C.39,
type of error is
both because the
by
legislature
the
authority conferred
the
in
beyond
scope
the
of obvious errors
the
county canvassing
in section 204C.39
recording of ballots and be-
counting and
of “obvious er-
boards for identification
legis-
process prescribed
the
the
cause
of the
counting
recording
the
in
ror[s]
requires
lature
a district
court order.
votes.”
the
not mean
errors must re-
This does
addition,
if
In
even
the
uncorrected,
the scheme
main
but
were “obvious
rejection of
ballots
legislature,
these errors are
created
the
the
the
error[s]
in an election contest.
to be addressed
votes,”
would not allow
section 204C.39
process might
aWhile more flexible
be
unilaterally
canvassing
county
boards
argued
of policy,
as a matter
advisable
Rather,
them.
section
correct
dissents,
legislature
that is
the
the
require
that
would
Therefore,
the recount cir-
decide.
errors;
notify
of the
the candidates
boards
here,
Secretary
presented
cumstances
up to
candidates to
then be
it would
Canvassing
and the
Board
State
State
court
for an order
the district
petition
authority
§ 204C.39
lack
under Minn.Stat.
determining
an error had been
whether
from coun-
accept summary
statements
made
the affected
requiring
ty canvassing
that have been
boards
canvassing board to first
reexamine the
acceptance
previ-
reflect the
amended to
parties
of the
presence
ballots
ously rejected absentee ballots.
error. Minn.Stat.
then
correct
204C.39,
2.12
subds.
III.
Thus,
by county
that
correction
Petitioners
further
contend
unilateral
absentee ballot
may
question
that
have
whether
canvassing boards of errors
Nevertheless,
dissents,
we
in Ander-
N.W.2d
held
their
Justices Anderson
In
that
court could allow
Page
canvass-
sen
a
correction
express the view that a
completion of the initial canvass.
errors after
under sec-
make corrections
Murphy
N.W.2d at 8.
Id. at
Justice
court involvement. Jus-
tion 204C.39 without
potential danger
of the
warned in his dissent
provision
on the
that a
tice Anderson focuses
county canvassing
allowing
boards to vol-
meeting
report of the
board after a
untarily
comple-
after
revise their returns
contain,
inspect
and returns” shall
“ballots
of the initial canvаss:
court,
alia,
copy
of the order of
inter
"a
if
(em-
3(a)
any."
agree
may permit
a
I cannot
statute
view,
added).
phrase
phasis
In
“if
our
grace
prevail
party
any”
override the balance of
is insufficient to
the belated action
language
pre-
in section 204C.39 that
board, voluntarily taken after its official re-
comprehensive process
a
scribes
detail
been
most
turn has
made. The
charitable
uniformly contemplates
finding
a court
observation of such construction
that it
inspection
has occurred before
error
permits
party
most active and
authorized,
if the candidates do not
gain
partisans
prematurely
persuasive
agree
Page
on the
Justice
asserts that
error.
advantage
a selective recount.
Andersen,
J.,
amending
the statute after
(Murphy,
at 15
Id. at
legislature
"ab-
dissenting).
could not have intended the
amending
the statute after
Andersen,
requiring
hearing.
Ad-
legislature
reasonably
surd” result of
court
could
dressing the
at issue in
we
statute
heeded these concerns and decided as a
quite
explained:
clear that what
policy
seems
matter of
that “errors” found after the
"[I]t
permit
election-night
mind was to
had in
results of the
returns
subject
at the
to the additional
correction of errors
time
canvass
known should
safeguard
hearing.
being
of a court
made.” 264
properly
improp-
were
amend their returns to
all
reflect
addressed,
all,
erly
can
if at
absentee ballots
canvass-
*13
only
erroneously
in an election contest under Minn.
boards determine were
re-
jected
Minnesota
night.
Stat.
ch. 209.
Statutes
election
209.02,
any eligible
subd.
voter
allows
Andersen,
was
issue
whether the
any
of
or candidate
contest
Canvassing
State
Board could accept
Senate,
person
among
United States
amended
county
returns submitted
ten
may
other
“The contest
offices.
boards,
canvassing
correcting errors under
brought
irregularity
over an
conduct
predecessor
204C.B9,
a
statute to section
votes,
of
of
an election or canvass
over the
county
after
had
boards
submitted
question
num-
largest
of who received
returns,
their initial
but before the State
cast,
...
legally
ber of votes
or on the Canvassing
completed
Board
can-
had
its
deliberate, serious,
grounds of
materi-
county
vass of the
board
264
returns.
al violations of the Minnesota Election Minn,
258-59,
at
We that whether of corrections. argued One candidate rejected erroneously absentee ballots were that a county canvassing board “func- was an be addressed in election contest tus after completing original officio” its chapter rejecting under 209. An error in could canvass and not be “revived” cor- an 264-65, absentee ballot is “an rect envelope errors. Id. at at N.W.2d irregularity in of an the conduct election” 6-7. The other urged candidate the court that “the of question adopt affects who received a “per- construction of the statute the largest legally mitting county board, number of votes cast.” a canvassing upon 209.02, errors, Minn.Stat. 1. discovery Neverthe- of obvious to reconvene less, disagree time, we relief any must en- and correct those at at errors tirely proceeding denied in canvassing least until the state board 263,119 204B.44. meets.” Id. at N.W.2d at 5. jurisdiction our
Petitioners invoked in We concluded that the statute contem- 204B.44, by county this matter under which plated only section corrections “any during allows us order the correction of initial their canvass. The statute act, omission, wrongful any or itself with began phrase error in con- “[i]f clerk, judge, county votes,” au- municipal ducting the canvass of ditor, 204.30, or canvassing any board of its mem- explained we bers, state, any secretary or literal reading “[a] the statute charged any duty justify individual with concern- elec- would conсlusion ing an campaign involving election.” The Franken tions state offices corrective argues that our opinion Andersen is action must be taken before authority for allowing secretary board certifies its result to the principal purpose Section is to 204B.44’s correction of ballot errors before the election. However, provide correcting mechanism errors section also allows the 204B.44 election, act, omission, alleged "any wrongful occurred before the court to correct place- any judge, municipal such errors and or omissions "in the error of clerk, auditor, description printing ment or name or members, state, any any question" any secretary candidate or ballot on the its preparing charged printing any duty errors in the offi- other individual Indeed, cial concerning ballot. section 204B.44 is the election.” Minn.Stat. only statutory 204B.44(d). mechanism available for the statutory 262-63, not what at their submission was
state.”
procedures
holding
That
was
would allow.
Similarly, we stated:
at
true
principle
on the
that once the
based
the legis-
that what
clear
quite
seems
“[I]t
known,
court
count
votes
permit
was to
correc-
in mind
lature had
require
incorrect count to be
should not
the canvass was
at the time
See,
e.g., id. at
119 N.W.2d
used.
whether part petition for relief under Minn. fact erroneous. Unlike the circum- 204B.44, Stat. in our stated order of no agree- stances in there is 18, 2008, December as modified our all ment of the absentee order December ballots that the local election officials have designated wrongly rejected would re- MAGNUSON, C.J., ANDERSON, people.” flect “true vote of the But BARRY, J., G. took part no agree where the candidates can with local consideration or decision of this case. rejection election officials that absen- error, ballot envelope correcting tee was in *15 would, error counting the vote DISSENT Andersen, provide consistent with “the ANDERSON, (dis- H., PAUL Justice tally
correct of the vote.” senting). Accordingly, we conclude that It’s voting not the democracy, that’s specific and limited circumstances where it’s the counting. parties all two candidates and the —the agree relevant local election officials— (1972) Tom Stoppard, Jumpers act I. envelope an absentee ballot return was I respectfully disagree dissent. I erroneously rejected, 204B.44 section au- majority’s enjoin decision to thorizes us to allow correction of that error canvаssing boards from including any pre- to reflect “the true vote of people,” viously rejected absentee the correction need not await an election appreciate administrative recount. I chapter explained contest under 209.14 As majority’s efforts to see that the results of above, although an election contest under the election reflect “the true vote of the address, chapter designed 209 is among people.” goal We all share the that the things, irregularity “an in the con- results of this election be accurate. But votes,” of an duct election canvass of the majority’s decision to bar can- evidentiary hearing specifically is an de- vassing from performing legal their irregularities signed those as to which including determining whether the are disputed there issues of fact. Minn. duties — judges erroneously rejected election bal- 209.02, all parties Stat. subd. Where lots on night little to agree that an absentee ballot return envel- —does achieve an validly accurate count of cast ope erroneously rejected, was there is no I majority votes. conclude that the opin- disputed issue of fact and no need laws, ion misreads Minnesota’s election factfinding process that an election contest internally inconsistent, Instead, chapter provides. improperly 209 gives significant ballot the candidates envelope that local control agree right election officials and the over a candidates citizen’s fundamental to have opened validly error his or her cast vote counted. We process prescribed note that unlike the solely agreement correction based on the require agreement in Minn.Stat. 204C.38 for We candidates. correction obvious errors in the also of the local election officials that an error ballots, we do not authorize was made. 234 191, 199, 1846, havе 112 S.Ct. 119 democracy, right one’s 504 U.S.
aIn
(1992)).
long
We have
held that
important
is as
as L.Ed.2d 5
validly
vote counted
cast
protect
right,
in order to
this fundamental
itself.
voting
act of
liberally
laws should be
construed.
repeatedly recognized
It has been
Warweg,
In
v.
to an
Quealy
reference
have
constitutional-
qualified
all
voters
law,
statute
we said that “[t]he
right to
vote
ly protected
liberally
must
construed so as
effec
counted,
States v.
United
their votes
fully
tuate
intention and to
se
legislative
904,
59
238 U.S.
S.Ct.
Mosley,
right
express
cure to the
people their
Mosley the
stated
Court
L.Ed. 1355.
145, 146,
their choice.” 106 Minn.
equally unquestionable
“as
that it is
(1908);
673, 673
also
v.
N.W.
see
Petersen
one’s vote counted is as
to have
right
Holm,
38, 40,
243 Minn.
66 N.W.2d
right
... as the
open
protection
(1954). “A technical construction of the
386[,
a box.” 238
U.S.
put ballot
objectionable
language used
would be
right
to vote can
904].
35 S.Ct.
and tend to
general principles,
subvert
outright, nor de-
be denied
neither
sought
purposes
Dough
to be attained.”
ballots, nor
stroyed by alteration of
di-
Holm,
68, 71-72, 44
erty v.
232 Minn.
As
stuffing.
luted
ballot-box
(Minn.1950); Quealy,
JClassic,[
v.
Court stated
[U.S.
146,118
major
at 673. The
N.W.
299, 61
question the that such can be ad- observation general board meets after the election to under Minn. dressed in an election contest general “canvass election returns deliv- Stat. ch. 209. ered to the auditor.” aspects Two based, first, on majority’s result is plain language of section 204C.33 exceedingly an narrow definition of the ap- indicate section 204C.20 does ply canvassing boards: phrase counting “obvious errors meaning of meaning “canvass” for an recording of votes office” “general election returns.” majori- used Minn.Stat. 204C.39. The ty concludes because “Canvass” is not defined in Minnesota 204C.20, (2008), rejected absen- law, but Dictionary provides Black’s Law tee are not and their votes ballots counted two definitions relevant here—'“to examine er- night, are not recorded detail; scrutinize” and formally “to deciding reject ror in an absentee ballot report count ballots and the returns.” envelope place return is not first (8th ed.2004). Dictionary Black’s Law “error addition, provides very Black’s rele- majority’s votes.”1 The reliance on Minn. example: vant According misplaced. Stat. 204C.20 is When all the ballots have been collect- number of section ed, including of the presiding those offi- night to be on election is the counted sum cer, tellers, the secretary, and the “the number from ballots are canvassed the tellers. *17 accepted absentee ballots” and “the num- Canvassing the ballots more than means (or signed ber of voter’s certificates” “the just counting. It includes evaluating number of names entered the election invalid, identify ballots to those that are register”). Id. Section 204C.20 be must blank, nominees, illegal illegible, cast for what rough understood for it is—a arith- like, abstaining, reporting and the judges metic to be check used election presiding the total results officer to night on election and more.2 for his of the no announcement results. 204C.20, majority § pro- disagrees 1. Minnesota Statutes subd. 2. The with characteriza- vides: “rough," check arithmetic as not- judges 204C.20, The election shall determine requires that section subd. by adding number ballots to be counted judges randomly election excess remove envelopes ac- number from only many in order to as ballots ballots count cepted to the absentee ballots number of as arithmetic be count- their indicates should certificates, signed voter’s to the number Op. agree ed. at 229 n. I section register. entered in the election names judges counting 204C.20 limits election judges The then all election shall remove only many ballots as their arithmetic indi- the ballots from the box. Without considеr- and, sense, should be cates counted in that marked, ing how the ballots are the election precision requires precision. the section But ascertain that each ballot is shall accuracy not be with and it should confused separate and shall count them to determine is in that sense that I characterize arith- box whether the number of ballots in the "rough.” metic check as corresponds to the number of ballots to counted. 204C.24, § Par- subd. calls what is filled out Ray Kessey, Modem E. (quoting (1994)). Under night “summary on statement” Procedure election liamentary “canvass,” it is foregoing summary definition A returns. of the returns canvassing boards to county duty mistaken for the returns should identify those that ballots “evaluat[e] supported by This is point themselves. nominees, blank, illegal invalid, cast are legislature’s references both “sum- and the like.” As the abstaining, illegible, mary “returns” statements” notes, 203B.12, MinmStat. majority (2008). 204C.28, subd. 1 Un- rejected ab- requires 204C.28, every der 1 of subdivision section pre- ballot return sentee —and county is to remain at the auditor’s auditor sumably inside —be “returned” the ballots to, night among on election in order office night. county on election auditor delivery re- things, “receive requirement Surely purpose of that public “permit inspection turns” their envelopes and make such return summary construing statements.” stat- inspection by the ballots available utes, are to that when the we assume See Minn.Stat. county canvassing board. in the uses different words (“the board shall subd. 1 context, here, as it same does intends general publicly canvass the promptly and things. Transp. them to mean different county to the election returns delivered State, 134, 137, Leasing v. 294 Minn. Corp. added)). majori- (emphasis auditor.” (1972). authority of coun- ty’s limits on narrow ty canvassing boards inconsistent Contrary majority’s to the defi narrow as this word is meaning “canvass” “returns,” nition I of election read subdivi used section 204C.33. 1 of section including sion 204C.28 as “returns” Furthermore, everything is delivered night. auditor on For general to canvass “the are example, auditor.” to be delivered to the returns delivered to that “returns” majority night. announces auditor’s office on election of votes Significant means “the results of precinct, precinct recorded ly, rejected absentee ballot return envel statute,” required by summary statements opes are also to be delivered to the things that on noting among other 203B.12, auditor. Minn.Stat. *18 complete to night precinct judges are (2008). Therefore, rejected absentee bal “summary place them in statements” lots among are the “returns” that the “Summary envelope labeled statements county auditor is to receive on election precinct.” ... In of the returns of the night. statutory language, Given this I words, limits mean- majority conclude that absentee en ballot summary of to the election “returns” velopes plainly among “general are judges filled election on statements out election returns delivered to the night. election county canvassing auditor” that the board to un something “promptly publicly But a of is not is canvass” “summary” 204C.33, itself. Minnesota der I.3 thing Statutes MinmStat. subd. that, acknowledge majority points may envelopes I as the have sealed out, majority provision are authorized ballots. believes this 204C.28, open county canvassing under Minn.Stat. subd. authorizes boards to re- only summary envelopes of the sealed ballots to retrieve move statements judges placed envelopes. returns” that local been in the ballot But I "election election language validly if of section 204C.33 votes on Even those cast ballots were not recorded, simple were all respect plain, this not because a mistake elec- example prob- judges. imagine illustrates the fundamental It is difficult to error,” majority’s yet on more major- lem with the reliance section “obvious authority county ity’s limit the of the “counting recording definition of Section 204C.20 re- the votes” is an board. this error that cannot be judges all quires county canvassing election to remove corrected board.4 Nevertheless, 204C.20, ballots the ballot on from box section subd. re- them, night, quires count that total compare erroneously those withdrawn ballots preserved to the arithmetic sum of “the number of and sent to accepted from erroneously auditor. Because the with- signed ballots” and “the number of voter’s drawn ballots are returned to the county (or auditor, certificates” “the number names en- I that they part conclude are also Id., register”). tered in “the general the election subd. election returns” available If there are more ballots the box to the county canvassing board under indicates, 204C.33, than Indeed, this arithmetic sum the Minn.Stat. subd. 1. I put are to judges all of ballots believe the requirement reason randomly back into the and then with- obviously box the county canvassing allow draw ballots from the box until the number part correct such an error as equals in the box general number of its “canvass election re- [of] Id., ballots to be counted. subd. 2. The the county turns delivered to auditor.” ballots so withdrawn from the ballot box only Not majority’s is the narrow con- id., night, are not counted on election “counting or recording” struction con- 3, but preserved and returned to the trary statute, contrary is also to our auditor, id., subd. 4. long-standing precedent princi- and to the if
What the election miscounted on ples precedent which that is based. return envelopes number of from ac- we observed that to hold that cepted absentee ballots or miscounted the the results of that election “must based number everyone of names entered in the election the return concedes register, result of perversion as a which election erroneous be a would our judges withdrew ballots from the ballot process pursuit whole election unnecessarily? box The ballots unneces- striсt need adherence statutes that not sarily withdrawn from box strictly the ballot on be so construed.” 264 counted, Yet, were night majority’s and the at 9. is, literally read the statute section votes.” the court Because concludes —that allows rejection erroneous of absentee ballots is not anything constituting boards to retrieve "counting an error in *19 return,” other “election than the ballots them- votes,” ruling majority’s county under the selves, inadvertently have been canvassing board cannot amend vote its totals envelope. sealed in the ballot to reflect absentee ballots that were error, agree. the I even if candidates fur- "counting The limited of court's definition judges correctly ther note that the if election recording” necessarily applies just or to figures added that were themselves errone- § Minn.Stat. but also Minn.Stat. ous, county canvassing then the board would (2008), § canvassing 204C.38 which allows not be detect if able to this error it could agreed boards to correct errors the only summary review statement of the candidates. Section 204C.38 limits returns. agree to which candidates can to "obvious counting recording error[s] in the 238 recording” and certified precincts, tion in certain “counting of
construction
decision allows
recanvasses to
exactly
The
retabulated results
those
that.
does
reasonably
If,
no
can
Secretary
one
as the
returns
State.
election
validly
votes to stand
cast
agree reflect all
coun-
majority suggests, Andersen limited
petition
voters
the disenfranchised
unless
only
canvassing
considering
ty
boards
an election con-
for redress in
the courts
by local
summary
prepared
statements
we observed that the
In
test.
Andersen
night, then the
election officials on election
of Minn.Stat.
predecessor
purpose
there had
ten counties that determined
“obviously
permit
correc-
§
counting and
in the
error[s]
been “obvious
county
lеvel of obvious errors
tion at
recording
guber-
in the 1962
vote[s]”
in order
precinct judges
committed
204.30,
race,
§
see Minn.Stat.
natorial
necessity
con-
of an election
to avoid
lawfully have done so
subd. 1.
could
Minn,
Andersen, 264
possible.”
test where
summary
only on the
statements
based
(citing
at
at
119
5
Minn.Stat.
elec-
prepared
local election officials on
(1961)). I
that under
conclude
204.30
tion
November 1962.
night
statutory
it does not
place,
scheme
to the courts of this
happened.
and should not fall
But
is not what
At least
to correct errors that
branches
state
county
one
reached the conclusion
government acknowledge exist.
there
been an error in “the
had
evi-
of the vote” based on
Although
majority
support
finds
majority
from the
dence that
excludes
in count-
“errorfs]
its narrow definition
County,
31
“returns.”
Grant
election
Andersen,
An-
I read
recording”
originally
ballots were not
count-
ma-
differently. Again, the
quite
dersen
into
they
ed
had been “delivered
because
holds that a
board
jority
personally
any-
judges
the hands of the election
authority to
statutory
consider
lacks
beyond
summary
being placed
statements
United
thing
instead
Minn,
elec-
mail,”
election officials on
filled out
local
at
States
our decision Andersen
night.
Yet
as Minnesota law then
119 N.W.2d
county canvassing boards
(1961)
countenanced
Minn.Stat. § 207.11
required. See
far more than that.
doing
(“The
precincts at
judges in the several
shall receive all ballots deliv-
election
guberna-
the 1962
Andersen concerned
day by
officers or
ered to them election
election,
original
tabu-
torial
in which
postoffice
employees
the United States
Rolvaag
Karl
lation of votes showed
department
due course of
business
L. An-
receiving
votes than Elmer
more
the ma-
department_”).
of that
Under
N.W.2d at
dersen.
case,
jority’s holding in this
the error
recon-
county canvassing
3.5
Ten
vened,
elec-
those
absentee ballots—which
rejecting
the rеsults of the
retabulated
summary
prepare "a
statement”
provisions
of Minnesota election law
were to
Minn.Stat.
applicable to
were not sub-
deliver it
auditor.
stantially
applicable
204.25
from those
different
prescribed
"publicly
was to
canvass the returns of
how
this election. The statute
many
judges were
the election made to the
auditor.”
ballots election
to count on
204.20,
204.29,
(1961). Finally,
night.
subd. 2
See Minn.Stat.
(1961)
(1961)
(requiring
204.30
allowed a
that there had
board to determine
*20
"determine whether the number
ballots
counting and
“an
error in the
corresponds
the number that the election
been
obvious
with
cast”).
any particular
recording of
of-
register
registration
or
shows were
the vote for
file
ballots,
counting
fice."
After
the
Rather,
on
according
majority,
been neither counted nor recorded
to
had
section
not an “error in count-
night
a county canvassing
204C.39 allows
board
—was
or
the votes” that could
ing
recording of
only
to amend its results
in response to a
county
been
can-
corrected
order,
court
obtained at
initiative of
vassing board
the error
not
because
would
one
words,
of the candidates.
summary
from
apparent
have been
majority’s interpretation,
under the
one of
Nevertheless,
statement of the returns.
always petition
the candidates must
opinion
reports,
in
as our
Andersen
a court
obtain
order before a county
board,
County canvassing
re-
“upon
Grant
canvassing board can amend its results
convening, considered the return of the
under section 204C.39.
proper
ballots
and counted them.” 264
Minn,
Section 204C.39
a
permits
county can-
at 4.6
119 N.W.2d
If we
vassing
board
reexamine its election
just
spirit
to be true to not
but
response
order,
results in
to a court
Andersen,
but I
must
allow
similarly
letter
we
do not
section
read
204C.39 as
county
requiring a
canvassing boards to address er-
with
court order.
3 of
respect
bal-
Subdivision
section
rors
here.
calls upon
lots
a
board, аfter
re-inspecting
ballots and
majority’s
In contrast to the
def-
narrow
returns,
submit
to the
auditor an
inition of
or
I con-
“counting
recording,”
regular report,
addendum to its
which is to
that an error in
rejecting
clude
absen-
include
minutes of the canvassing
is an
counting
tee ballot
error
both
meeting,
board’s
a
copy
meeting
recording a
validly cast vote. Errors
candidates,
notice
given
the total
“counting”
necessarily
must
include errors
number
votes
count,
received
each
deciding
just
what
candi-
as errors
date,
“a
“recording”
copy
court,
necessarily
must
er-
the order
include
in deciding
any.'’
rors
what
record. The erro-
subd. 3
if
added).
rejection
neous
an (emphasis
majority
an absentee ballot is
dismisses
counting
error
both
and recording the
“if
phrase
any,” deeming
it “insuffi-
because,
validly
vote
if
cast absentee votes
cient to override the balance of the lan-
are not counted
votes
that have been
guage in section
Op.
204C.39.”
at 230 n.
validly
recorded,
resulting
cast are not
statute,
in construing
But
our task
accurately
vote totals cannot
reflect “the
ignore
inconsistent,
is not
which is
vote
true
of the people.”
but to reconcile inconsistencies when we
Mankato,
Lowry v. City
can.
231 Minn.
My
disagreement
second area of
113, 42 N.W.2d
557-58
majority
interpretation
is in its
of the
Therefore, I conclude that section 204G.39
process
established
contemplates
situation in which the
coun-
majority
204C.39. The
concludes
ty canvassing
may re-inspect
board
section 204C.39
not
does
allow a
unilaterally
ballots and amend
vote
reported
board to
amend its
its
totals
results, even for
requiring
the most obvious of errors
the absence of a court order
counting
recording
“in
the votes.”
to do so.
only
judges.
Not
did one of
ten counties correct
based
affidavits of two election
"counting
recording"
an error in
Thirdly, I Description” being: that ter, majority’s observation the “Reason Code with the to registered eligible absentee ballots are voter was not and rejecting in “The under in an election contest precinct or has not included be corrected to vote Although 209. Minn.Stat. completed registration ap- Minn.Stat. ch. voter properly a “[a]ny 209.02, eligi- § subd. allows plication.” rejection This for reason an con- commence election to 203B.12, ble voter” tracks with Minn.Stat. subd. no mechanism under test, I can find 2(3) (2008), that an provides which for a voter who cast law Minnesota “Accepted” absentee ballot be marked out to find whether his ballot absentee satisfied that “the election must be How, then, ever counted. vote was her registered eligible vote voter absentee ballot envel- a voter whose would a precinct properly or has included rejected know he ope improperly completed registration application voter to have file an election contest or she must envelope.” appears the return Thus less do her counted—much his or vote were two voters’ days completion so within seven rejected regis- because the voters were not 209.021, canvass, tered vote. (2008) Further, requires? evidence, Yet which should have there rejection the erroneous contest filed over can- readily been available presumably ballot would an absentee board, vassing these were two voters inspection absentee bal- require properly registered vote. Secre- envelope. But it is not clear lot return tary of State’s voter identification record majority’s application Minn. only reg- shows that both voters were not and its narrow definition Stat. diligent voters but voters. One has istered that a absentee ballot “canvass” in every primary general elec- voted scope of the ballots envelope is within the a special since as well as inspected under that can be school board election.7 209.06, 209.06. See Minn.Stat. in all general has voted elections since (2008) (providing [of] for “recanvass 1994, all two since primary but elections contest”). parties to cast for the votes date, and several local elections.8 appropriate give it is point, At elections, in person all of these both voted why an obvious error example another recently they person most voted in counting or absentee ballots primary September held on should, can, by county addressed board before State Can- Nevertheless, the ballots of these two vassing certifies winner in the Board rejected, and voters were their votes were This United States Senate election. error foregoing in- not counted. Based recording appears in the counting or formation, rejection judges’ the election to us in this case. documents submitted only can these ballots be described as voters, residing Two same address suburb, error in cast result an “obvious a metro area absentee bal- election, recording.” only Not were their votes not but their lots November race, they rejected. The reason counted for the Senate but also given ballots were rejection is as code other race for for the listed number were counted voting voting first 8. See Addendum for record of second See Addendum for record of voter. voter. *22 validly Second,
which their votes were cast. I I by am concerned what I see as voters, inconsistency that an in the majority’s these who have opinion, believe narrowly which construes the term “count- past diligent been conscientious and ex- ing recording errors” —thus limiting the their enfranchised would be ercising right, county ability of canvassing boards to deal surprised chagrined both to know that with anything other than arithmetic er- their votes have not been due to counted rors —but nevertheless directs two of the Further, human error. their obvious trust make every candidates to attempt agree to voting system may and confidence our unanimously as to what errors in counting significantly they well be if undermined or recording have been counting made in that, error, learn result of an obvious Again, absentee ballots. I appreciate the only reject- their ballots were majority’s attempt to see that some of the that, discovered, ed but once the error was improperly rejected absentee ballots were law, interpreted the ma- by Minnesota remedy counted. But the it has provided jority, does not allow the canvass- requested by was not the parties, and I am simply error.9 board correct not sure be properly it can by ordered how, I Again, wonder as a mat- practical court under Minn.Stat. 204B.44 ter, these voters will ever their learn bal- Moreover, inquiry ordered the ma- rejected, lots were much so within less do jority process and the that this inquiry days of completion seven the can- obviously beyond involves extends the ma- vass, 209.021, as Minn.Stat. re- jority’s interpretation of what a Then, quires. even if they timely were canvassing is legally authorized learn their rejected, ballots were do. majority has essentially issued only way they get their votes counted un- directive that cannot be fulfilled majority opinion der the for them would be light majority’s commence election contest. interpretation narrow phrase “counting recording.” I have three concluding observations.
First, system, under Minnesota’s election Third, I take issue with majority’s given boards are consid- to, position essence, assign to two of the authority erable to fulfill discretion competing candidates —Norm Coleman duty accurately validly their count votes and A1 Franken —-the decision as to which above, cast in election. As I indicated counted, ballots are while at the conclude statutory Minnesota’s forbidding duly same time appointed elec- allows county scheme canvassing boards to tion from correcting officials obvious correct obvious errors before the State their own. Canvassing Board certifies a winner majority holds that if Coleman and given election. I do why not understand Franken that an agree absentee ballot Coleman, ah, petitioners Norm et were so counted, should be then that ballot can reluctant have this statutory scheme counted; but, if either objects, candidate take normal process its course. This al- objecting candidate power has veto lows the State Canvassing Board to reach over whether vote is counted a result without excluding Canvassing votes major- State Board. What the obviously ity cast a valid manner. has subordinate a right done is citizen’s delay I note under section candidate without unreasonable disagrees if a candidate decision apply to the court district for relief. board, made *23 States and which allows an “obvious error Minnesota’s 2008 United
to vote
the vote” can
right
that citizen to
contest—the
Senate
and
after
initial can-
will be corrected
post-
counted—to the
his
her vote
completed.
statutory
vass is
This
scheme
candidates.
It
strategy of the
is in
so that we can “avoid the neces-
place
me that in
demo-
our
makes no sense
sity
possible,”
of an election contest where
give
candidate
society, we would
cratic
262,119
at
N.W.2d at
over whether a citizen’s vote
power
veto
(1961)).
(citing
204.80
It
That decision should and
will be counted.
“perversion”
also avoids the
an “election
duly
with thе
authorized election
must rest
process”
“everyone
based on returns that
Canvassing
Board.
State
officials
at
concedes
erroneous.” Id.
[are]
directive, which I con-
majority’s
majority’s
N.W.2d at 9. The
decision does
authority,
statutory
particu-
clude lacks
statutory
this
scheme work
permit
sophisticated
larly
given the
troublesome
I
and it is
this reason must dissent.
political
now available to
voter information
campaigns. Nowadays,
candidates
ADDENDUM
campaigns
political
unusual
is not
Voting record of first voter:
information on
parties to have detailed
ELECTION
ELECTION
voters,
gen-
as
elections—be it
such what
DATE
DESCRIPTION
eral,
local,
STATE PRIMARY
special
voter
primary,
09/14/2004
—the
SCHOOL DISTRICT ELECTION
11/06/2001
period
a
of several
participated
over
STATE GENERAL ELECTION
11/06/2002
STATE PRIMARY
09/10/2002
responded
years
how the voter
GENERAL
STATE
11/02/2004
information,
surveys.
this
polling
From
STATE PRIMARY ELECTION
09/12/2000
GENERAL
STATE
11/07/2000
political
can create
parties
candidates and
PRIMARY ELECTION
STATE
09/15/1998
likely party
or candidate
profile
GENERAL
STATE
11/03/1998
STATE PRIMARY ELECTION
09/10/1996
majority opinion
prefers.
the voter
STATE GENERAL
11/05/1996
SCHOOL BOARD ELECTION
likely
11/07/1995
has created
scenario
STATE PRIMARY ELECTION
09/13/1994
majori-
will
power
candidates
take
GENERAL
STATE
11/08/1994
SPECIAL ELECTION
07/13/1993
them,
has
it with
ty
handed to
combine
GENERAL ELECTION
11/04/2003
information,
their voter
and use it
STATE PRIMARY
09/12/2006
STATE GENERAL
11/07/2006
hard-fought
tactical tool
their
contest
PRIMARY
STATE
09/09/2008
for votes.10
Voting record of second voter:
A
over
placing
decision
ultimate control
ELECTION
ELECTION
DATE
DESCRIPTION
whether a citizen’s vote is to be counted
STATE PRIMARY
09/14/2004
SCHOOL DISTRICT ELECTION
Canvassing
the State
Board
the hands
11/06/2001
STATE GENERAL ELECTION
11/05/2002
leads
an untenable
candidates
STATE PRIMARY
09/10/2002
STATE GENERAL
11/02/2004
beginning
quote
result. As
STATE GENERAL
11/07/2000
says:
my
voting
dissent
“It’s not the
that’s
STATE PRIMARY ELECTION
09/15/1998
STATE GENERAL
11/03/1998
I
democracy,
counting.”
it’s the
conclude
STATE GENERAL
11/05/1996
statutory
Minnesota has
scheme in
STATE PRIMARY ELECTION
09/13/1994
STATE GENERAL
11/08/1994
place
validly
all
ensure that
cast votes
GENERAL ELECTION
11/04/2003
STATE PRIMARY
09/12/2006
are counted and
local election
recorded
STATE GENERAL
11/07/2006
Canvassing
officials and the State
Board
STATE PRIMARY
09/09/2008
Nevertheless,
acknowledge
I
that in
order Decem-
I do
its
not believe that reminder
18, 2008,
recognized
majority
ber
this
necessarily prevented
problem
has
that I
potential problem
parties
reminded
anticipated would arise.
obligations
"their
under Minn. R. Civ. P. 11."
(Nat’l
PAGE,
(dissenting).
Publishers,
Inc.1964).
Justice
Document
Reminiscеnt of what has taken place in
join
I
Justice PAUL H.
the dissent of
case,
parties
least one
ANDERSON.
argued
Andersen
that errors should be
corrected when the correction inured to his
DISSENT
while at
benefit
the same time attempting
*24
preclude
to
corrections that adversely af-
PAGE,
(dissenting).
Justice
Minn,
269,
fected him. 264
at
119 N.W.2d
join
I
Justice Paul Anderson’s dissent.
9-10.
appears
at
It
that
the action in
briefly
separately
I write
make four Andersen was
for that
brought
very rea-
points
emphasize
and to
three
additional
son.
made
Anderson.
points
Justice
To the extent
court
that the
relies on the
additional
want to
points
four
I
make are:
fact that
parties
objected
in Andersen
Canvassing
State
Board
1. The court
the meaning
misconstrues
amended
by county
results submitted
can-
of Andersen.
vassing boards
of “technical irreg-
because
in
ularities
arriving at
result rather
Andersen,
While the court
In re
cites
than on a claim
that
results are not
257, 261-62,
1,
264 Minn.
119 N.W.2d
272-73,
right,”
id. at
119 N.W.2d at
(1962),
part
justification
for its
court
takes the Andersen reference to
decision, Andersen,
fact,
sup-
does not
“technical
irregularities” out of context.
that decision.
does it
port
support
Nor
The Andersen
permitted county
court
can-
court’s narrow
construction of Minn.
vassing boards to correct obvious errors
contrary,
Stat.
204C.39. To the
Ander-
and submit
amended returns
the Secre-
supports
proposition
sen
that election
tary of
then
State.
Id.
It
concluded that
laws are to be
construed and that
liberally
Canvassing
the State
Board
accept
could
have the
authori-
the amended
returns.
Id. at
ty to correct
such
obvious errors
as the
cause the avoid preted to absurd results. the court to the extent Finally, con- Applying statutory our rules proposition for the Andersen relies on struction, we construe statutes to avoid counting,” error in phrase “obvious Clark, .39, v. absurd results. State in sections 204C.38 set forth (Minn.2008); 241, 249 and N.W.2d computation to errors limited numbers, 645.17 Minnesota Statutes not at all clear reporting of (1961), to Minn. precursor 204.30 the Andersen court before that the errors passed by clear, Stat. It is only type. errors of were *25 necessity avoid of elec- legislature to the however, Andersen court did not that the Andersen, possible. when tion contests permitted of errors to be type limit the 262, 119 at At at N.W.2d the to, suggests, as court the corrected generated that time the election the reporting of numbers “compilation and litigation, provid- summary Andersen section 204.30 state- precinct contained could, explained ed that court ments.” Andersen agreement of four out of five the “[f]or 204.30 that Minn.Stat. members, unilaterally canvassing board “county time,” that canvass- provided first any could, obvious Id. After necessary, if correct errors. inspect board[s] Andersen, im- the statute was amended to to er- the ballots in order correct obvious plement procedures to similar those found at 6. And rors.” Id. N.W.2d §§ today. and just In in MinmStat. 204C.38 .39 county canvassing boards did that. 1965,1965 Earth, Sueur, Morrison, Act of Mar. Minn. Laws Le Douglas, Blue (codified counties, Watonwan, 117-18 as Minn.Stat. 204.30 An- Stevens (1967)). nothing suggest There is stated that expressly dersen court the amendment was intended to alter the upon were confirmed ex- counting errors 259-61, legislative purpose avoiding the ballots. Id. at amination of added). possible. Limiting contests when (emphasis at 3-6 “obvious N.W.2d Ob- counting” compu- error viously, examination of ballots involves recording tation and contra- reporting more than numbers computation and purpose by making venes the statute’s County, In Grant the court al- numbers. guaranteed all election contests but lowed the inclusion of 31 absentee ballots Moreover, it is close elections. unreason- original that had not been counted to think that Id. at at 4. able would returns. Thus, put place procedures have the elaborate the court chooses selective while solely out in phrases justify from its set sections 204C.38 and .39 Andersen deci- sion, involving for the correction of errors complete reading sup- of Andersen computation of numbers. ports the conclusion the correction of Requiring a court order correct such alleged permitted obvious errors as here is significant result in a §§ under Minn.Stat. and .39. errors would waste judicial resources. end, In permit- the Andersen court ted all the legislature identified errors to be corrected The court counters that attempt implemented process of one of the have as a could parties distinguish vocal types safeguard between to ensure that most candidate could not exert political undue the legislature changed procedures pressure on local canvassing boards followed, the legislature change did not to amend their I disagree returns. do not or otherwise limit scope of counting legislature may adopted reporting errors that could be correct- procedures set out in sections 204C .38 and ed. Absent an express change scope, prevent .39 to political pressure undue on our rules of construction lead inescapably fact, local In boards. I sus- that, to the conclusion as was the case pect, part, at least in legisla- that was the amendments, before the the scope of cor- ture’s purpose. while both rectable goes obvious errors beyond com- candidates, Andersen Rolvaag, initially putation and recording of numbers and agreed re-open includes and all obvious errors in though board even it had already complet- counting and recording.1 returns, Rolvaag ed its subsequently took position re-opening such was ille- 3. The implicitly court concedes that gal. Backstrom, Recount, Stinnett & su- counting includes process of de- pra, 71. Andersen then moved to re- termining which absentee ballots are open many counties favorable himto to be included canvass- he could. Id. After pulled Andersen ing boards’ reports. *26 count, in ahead the vote Rolvaag decided reads, The opinion begin by briefly “[w]e that he would try have to to recanvass reviewing statutory provisions for pro- precincts with “obvious error[s]” that fa- added.) cessing (Emphasis ballots.” vored him. Id. at But Rolvaag when The court’s not-so-subtle effort to avoid was not successful in getting any canvass- using the “counting” word to describe reopen, political boards to his party which absentee ballots are to be included accused Andersen of “applying pressure on in the count purposes of reporting the disregard boards to election laws office, number of votes cast for the fails. procedures to search for [Andersen] rose, by any name, A is still a rose. votes while at the same time attempting to process of determining which votes to prevent canvass recounts which appear to in include the count of report- votes to be favor [Rolvaag].” at 74. ed, by name, any other process is the Thus, I agree while that the rationale such, counting. As in obvious errors that legislative for the changes in- partly process come within the scope of “obvious tended to limit undue influence on error in counting reporting” as used in boards, canvassing that fact has bearing no §§ 204C.38 and .39. Andersen, on this case. Before the statute permitted county canvassing detailing uni- process, to laterally any correct obvious error court notes that a purpose when recount’s is “to four of five board members ensure that the in so votes cast [an] Andersen, chose. After legislature accurately [are] counted.” The court then procedures amended the to be scope followed defines the of reviewable errors that correcting when obvious errors. But while corrected a “recount” as errors aside, understandable, nothing politi- As an because there is errors. need That howev- cal transposed er, about a if, number contrary suggestion, to the court’s added, subtracted instead again question I scope оf the errors that can be corrected why there would abe need for the computation includes more than and record- procedures create such elaborate for the ing errors. computation correction of mere reporting But, unlike the an administrative recount. number determination “the time of in effect the office.” Curious- statute validly cast for votes provided that errors discovered recognizes which implicitly court ly, while can- while boards were rejection of an absentee improper that the corrected, Minn. vassing could be votes determining an error ballot constitutes not today does contain validly cast for an Stat. 204C.39 of votes number limiting may be cor- language when errors office, concludes that the court nonetheless Thus, Andersen rected. statement scope within the do not fall such errors errors subject boards cannot correct only to review “counting” and are met state board has That after the in an contest. conclusion is Further, today. if it no even has effect view premised on erroneous did, remedy here would be only proper in counting” words “obvious error error-correcting authority and re- exercise our computation include reports amend permit the counties to their porting of numbers. reflect the true outcome the election § 204C.39 does 4. Minnesota Statutes using out Minn.Stat. procedures set for counties prescribe a deadline adopt judicially- It is not 204C.39. in count- correct obvious errors guaranteed process created result ing. voter disenfranchisement. that counties cannot court concludes made points The three Justice under Minn.Stat.
correct obvious errors Anderson in his dissent I want Canvassing after the State emphasize are: the original Board has canvassed results presented by question 1. The this case. recount is under an administrative *27 question presented parties if way. noted that we whether obvious errors local election legislature provide can that a court can rejecting validly officials in cast absentee order to reconvene to canvassing board initial ballots in the the votes error, may provide also correct No- cast United States Senator in the the board can reconvene its own once 2008, 4, general can be vember 267, Id. at 119 are discovered. using procedures set out corrected did at 8. But we not decide N.W.2d §§ 204C.38and .39. had authorized whether liberally Election statutes are this; that, even if we concluded construed. unilat- authority boards did not have the done, liberally erally they had a court We are to construe Minnesota’s reconvene as laws, guided by the exercising error-correcting authority principle its “[statutory regulations of could have them to do so. ordered to in- franchise must so construed as correctly The court here notes that in sure, defeat, than rather full exercise we that under con- Andersen stated possible.” thereof when wherever statute, existing struction of the there Erickson, 146, 151, Minn. 6 Flakne v. 213 time point should be cutoff (1942). 40, N.W.2d 42 263, state met. Id. at Here, this, liberally construing 119 at 5-6. Based on instead N.W.2d counting” cor- error in ensure court concludes that counties term “obvious franchise, voting af- full protection rect errors under Minn.Stat. construction, begun court, ter narrow Canvassing applying the State Board has
247
rejection
statute,
provided by
concludes that the erroneous
of vass as
the overall
validly
object
cast absentee ballots cannot be cor-
declaring
the candidate with the
rected under either section 204C.38 or .39.
legal
most
votes the winner should take
interpretation
Such a narrow
is inconsis- priority
prescribed
over a
method that
past
tent with our
election law cases. For
could result in declaring the loser the win-
Gutches,
example, in
v.
Scow
we consid-
271,
ner.
Id. at
would have indicated otherwise. 162 ed. 98, 99-100, Minn. 202 N.W.
We concluded voters should not be “[bjecause
disenfranchised some officer
having to fully do with the election has not
carried out what the statutes direct him to
do ... if it can by any be avoided reason- *28 interpretation.”
able Id. at 202 N.W. at 72. In the Matter of the Petition Finally, we considered CRABLEX, INC. permit whether to correction of “obvious error recording,” even In Relation to Certificate of Title No. though statutorily prescribed timeline County issued for land in the had not been followed. 264 at 261- Hennepin Minnesota, State 62, 119 5. While a literal read- and for a new Certificate of Title after ing of the statute would have barred cor- Mortgage Foreclosure Sale. rections, provided as the statute for cor- No. A08-0458. votes, rection while canvassing the we construed the statute at issue to effectuate Appeals Court of of Minnesota. 262-63, its purpose. Id. at 119 N.W.2d at Feb. so, doing that, 5-6. we noted while it would have been better for the errors to
have been during corrected the initial can-