Nоrm COLEMAN, et al., Petitioners, v. Mark RITCHIE, Minnesota Secretary of State, the Minnesota State Canvassing Board, Isanti County Canvassing Board, et al., Respondents, Al Franken for Senate and Al Franken, Intervenor-Respondents.
No. A08-2169.
Supreme Court of Minnesota.
Dec. 16, 2008.
306
MAGNUSON, C.J., and ANDERSON, G. BARRY, J., took no part in the consideration or decision of this matter.
Based upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED THAT:
1. The motion of Al Franken for Senate and Al Franken to intervene as respondents in this matter be, and the same is granted.
2. As previously ordered, the court will hear argument on this matter commencing at 1:00 p.m., Wednesday, December 17, 2008, in Courtroom 300, Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King, Jr., Boulevard, Saint Paul. One hour is allotted for argument, with petitioners allocated one-half hour and respondents allocated one-half hour. Petitioners shall argue first and may reserve time for rebuttal. All counsel intending to argue shall check in with the Marshal in Courtroom 300 not later than 12:40 p.m. Petitioners’ counsel shall advise the Marshal how much time is reserved for rebuttal, and respondents’ counsel shall advise the Marshal of any allocation of time among respondents and the order of argument among respondents.
BY THE COURT:
/s/ Alan C. Page Associate Justice
MAGNUSON, C.J., and ANDERSON, G. BARRY, J., took no part in the consideration or decision of this matter.
Norm COLEMAN, et al., Petitioners, v. Mаrk RITCHIE, Minnesota Secretary of State, The Minnesota State Canvassing Board, Isanti County Canvassing Board, et al., Respondents, Al Franken for Senate and Al Franken, Intervenor-Respondents.
No. A08-2169.
Supreme Court of Minnesota.
Dec. 18, 2008.
Petitioners Norm Coleman, et al., have filed a petition and an amended petition under
The legislature has created processes for correction by county canvassing boards of “obvious errors in the counting and recording of the votes.”
We conclude that improper rejection of an absentee ballot envelope is not within the scope of errors subject to correction under
Based upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED THAT:
1. The petition of Norm Coleman et al., for relief under
2. All local election officials, county canvassing boards, the Secretary of State, and the Minnesota State Canvassing Board are enjoined from opening any previously rejected absentee ballot envelopes and from including any previously rejected absentee ballots in the administrative recount now underway, except as provided herein,
3. Because previously rejected absentee ballots that all agree were rejected improperly should be counted, and in light of the fact that the State Canvassing Board has not yet certified the final results of the recount, we order candidates Norm Coleman and Al Franken and their campaign representatives, the Secretary of State, and all county auditors and canvassing boards to establish and implement a process, as expeditiously as practicable, for the purpose of idеntifying all absentee ballot envelopes that the local election officials and the candidates agree were rejected in error. The local election officials shall identify for the candidates’ review those previously rejected absentee ballot envelopes that were not rejected on any of the four bases stated in
4. In reviewing previously rejected absentee ballot envelopes for purрoses of reaching agreement whether the ballot envelope was rejected in error, the parties are reminded of their obligations under
5. Petitioners’ motion for a temporary restraining order or temporary injunction be, and the same is, denied as moot.
6. So as not to impair the orderly election process, this order is issued with opinions to follow.
BY THE COURT:
/s/ Helen M. Meyer Associate Justice
MAGNUSON, C.J., and ANDERSON, G. BARRY, J., took no part in the consideration or decision of this matter.
PAGE, Justice (dissenting).1
Josef Stalin is alleged to have once said, “I consider it completely unimportant who will vote, or how; but what is extraordinarily important is this—who will count the votes, and how.”
Today the court gives credence to that proposition by preventing at least some number of validly cast votes from being included in the final canvass of the election for Minnesota‘s United States Senate seat currently held by Senator Norm Coleman. As a result, these Minnesota citizens who cast thеir votes for Senator Coleman and Al Franken, as well as in other election contests on the ballot, will be disenfranchised. Therefore, I respectfully dissent.
By its order, the court holds that canvassing boards do not have authority under
Notwithstanding that holding, the court оrders the candidates and local election officials to review the rejected absentee ballots and determine which of those ballots were rejected in error. For ballots which they all agree were rejected in error, the court orders that those ballots be opened and counted. In effect, the court is deciding that though the legislature designated the procedures in section
In addition, section
But “foolish consistency is the hobgoblin of little minds,” and therein lies the rub. The court‘s ruling denies county canvassing boards which have reached the decision—that an absentee ballot was rejected in obvious error—the ability to correct those errors unless the candidates agree. The court‘s order may seek the peaceful way out by asking the campaigns to agree on improperly rejected ballots. But the order does not guarantee that the candidates and their political parties will agree on any rejeсted ballot. Instead, the court‘s order will arbitrarily disqualify enfranchised voters on the whim of the candidates and political parties without the benefit of the legislatively authorized procedures in section
It is a perverse result, indeed, for political parties and their candidates to determine whether a voter‘s absentee ballot was properly or improperly rejected. By making the acceptance of an improperly rejected ballot contingent on the candidates’ agreement, the court has abdicated its role as the defender of the fundamental right to vote. Instead, it has made the candidates and their parties the gatekeepers—even though they are likely to be more concerned with their own election prospects than with protecting the absentee voter‘s right to vote.
Further, the court‘s order pays lip service—but only that—to the principle that all valid votes are to be counted, including those of absentee voters. We stated in Erlandson v. Kiffmeyer, 659 N.W.2d 724, 734 (Minn.2003), that “[t]he purpose of the absentee ballot is to enfranchise those voters who cannot vote in person.” Because the requirements for absentee voting are quite stringent, we have tried to avoid disenfranchising “the very people the absentee voter laws are intended to benefit.” Id. Today‘s order burdens the absentee voter‘s fundamental right to vote.
Those whose absentee ballots do not fall into one of the four categories for rejecting absentee ballots under
Moreover, the court‘s order creates the very equal protection problem that the Petitioners contend will arise in the absence of the relief it sought. By treating valid and legally cast absentee ballots differently, depending on whether the candidates and local election officials agree that they were improperly rejected, the court allows a distinction that can only be described as arbitrary.
Finally, the court‘s order threatens sanctions against the attorneys for the two campaigns and their clients in a future legal proceeding if the attorneys or their respective clients unreasonably refuse to agree that particular absentee ballots were improperly rejected. But the clients, here, have no obligation to agree, whether reasonable or not. It does not appear to me that counsel for either campaign is in a position to control the outcome of that process, and I questiоn our authority to sanction the attorneys or their clients for a decision that the attorneys’ clients have every legal right to make.
The record before us indicates that at least 600 absentee ballots were improperly rejected. Under the court‘s order, those votes may never be counted, not because of anything that either the voters or their elected officials have or have not done, but simply because this court gives the narrowest possible reading to the language “obvious error in the counting and recording of the vote” and ignores
PAUL H., JUSTICE (concurring in part and dissenting in part).
It‘s not the voting that‘s democracy, it‘s the counting.
Tom Stoppard, Jumpers (1972) Act I
I agree with the majority that we should direct the parties and local election officials to make every effort possible to agree as to those absentee ballots that were rejected in error in Minnesota‘s 2008 race for the United States Senate. But I disagree with the majority‘s decision to enjoin county canvassing boards from including, in the absenсe of such an agreement, any previously rejected absentee ballots in the administrative recount now underway, the effect of which is to bar county canvassing boards from performing their legal duty to determine whether election judges rejected any of such ballots in error. I conclude that the majority‘s order is flawed because it misreads Minnesota‘s election laws, is internally inconsistent, and has essentially inserted this court into a political thicket based on a premise that lacks a basis under the law. In a democracy, the act of voting and having a validly cast vote accurately counted are inextricably linked. The right to have one‘s vote counted is as important as the act of voting itself.
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 (1915). In Mosley the Court stated that it is “as equally unquestionable 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. at 905. 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 Classic, “Obviously in-
Our review in this case “must be informed by the recognition that ‘[n]o right is morе 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, 659 N.W.2d 724, 729 (Minn.2003) (quoting Burson v. Freeman, 504 U.S. 191, 199, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992)). We have said that in order to protect this precious right election laws should be liberally construed. In Quealy v. Warweg, in reference to an election law, we said that “[t]he statute must be liberally construed so as to effectuate legislative intention and to fully secure to the people their right to express their choice.” 106 Minn. 145, 146, 118 N.W. 673, 673 (1908); see also Petersen v. Holm, 243 Minn. 38, 40, 66 N.W.2d 15, 16 (1954). “A technical construction of the languagе used would be objectionable on general principles, and tend to subvert the purposes sought to be attained.” Dougherty v. Holm, 232 Minn. 68, 71-72, 44 N.W.2d 83, 85 (1950); Quealy, 106 Minn. at 146, 118 N.W. 673. My full dissent will accompany the court‘s full opinion in this matter. I write separately at this stage to emphasize that the court‘s decision today is inconsistent with the foregoing fundamental principles that we have said apply to voting and the counting of votes.
The court‘s order is based on a very narrow definition of the phrase “obvious error in the counting or recording of the votes for an office” as used in
The majority‘s narrow construction of the county canvassing board‘s authority to correct the mistakes of elеction judges is also inconsistent with the duties of the county canvassing board under
Not only is a narrow construction of “obvious error” contrary to statute, but it is contrary to our long-standing precedent and to the principles on which that precedent is based. In Andersen, we obsеrved 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, 119 N.W.2d at 9. Yet, the majority‘s construction of “obvious error” does exactly that: allow election returns that no one can reasonably agree reflect all validly cast ballots to stand unless the disenfranchised voters petition the courts for redress.
At this point, it is appropriate to give an example of an obvious error in counting and recording absentee ballots that can, and should, be addressed by a county canvassing board before the State Canvassing Board certifies a winner in the Senate election. 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 by election judges. 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 registered and eligible to vote in thе precinct or has not included a properly completed voter registration application.” This reason for rejection tracks
Yet there is evidence, intrinsic to the electoral system, that the absentee ballots of these two voters were improperly rejected and their votes therefore were not counted. The Secretary of State‘s voter identification record shows that both are 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.1 The other has voted in all general
Nevertheless, the ballots of these two voters were rejected and 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 which their votes were validly cast. I believe that these voters, who have in the past been conscientious and diligent in exercising their enfranchised right, would be both surprised and chagrined to know that their votes have not been counted due to obvious human error. Further, their trust and confidence in our voting system may well be significantly undermined once they learn that, as a result of an obvious error, their absentee ballots were not only rejected but that, once the error was discovered, Minnesota law as interpreted by the majority does not allow the county canvassing board to simply correct the error.3
The foregoing example points out a further problem with the court‘s order. In Andersen we observed that the purpose of the predecessor of
I have three summary observations. First, I am perplexed by the petitioners’ position that county canvassing boards do not have the ability to review and correct obvious errors in the counting and recording of absentee ballots. Under Minnesota‘s election system, county canvassing boards are given considerable authority and discretion to fulfill their duty to accurately count votes 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 are so reluctant to have this statutory scheme take its normal course so that the county can-vassing boards can count absentee ballots that have undisputedly been rejected improperly. This process allows the State Canvassing Board to reach a result without excluding ballots that are undisputedly valid.
Second, I am concerned by what I see as an inconsistency in the majority‘s opinion, which narrowly construes the term “counting and recording errors,” thus limiting the ability of county canvassing boards to deal with anything other than arithmetic errors but nevertheless directs the parties to make еvery attempt to agree unanimously as to what errors in counting and recording have been made in counting absentee ballots. I appreciate the majority‘s attempt to see that some of the improperly rejected absentee ballots are counted. But the remedy it has provided was not requested by the parties, and I am not sure can be properly ordered by the court under
Finally, I note that, although I disagree with the majority‘s order issued today, it is important to keep in mind that this order is a result of a preliminary skirmish in what appears to be an extended legal contest regarding Minnesota‘s 2008 Senate election. Winston Churchill is reputed to have once said, in an admiring tone, that Americans ultimately do the right thing after they have exhausted all the оther alternatives. Sometimes, the wheels of justice and due process take time to fully turn. While I believe that we have incorrectly exhausted one alternative today, I have complete confidence that ultimately the right thing will be done and all validly cast absentee ballots will be properly counted.
I respectfully concur in part and dissent in part.
Notes
| ELECTION DATE | ELECTION 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 |
| 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 |
| ELECTION DATE | ELECTION 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 |