Coleman v. Ritchie

• Citation: 762 N.W.2d 218
• Decision Date: 06 March 2009
• Docket Number: No. A08-2169.,A08-2169.
• Parties: Norm 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.
• Court: Minnesota Supreme Court

762 N.W.2d 218

Norm 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.

March 6, 2009.

Roger J. Magnuson, James K. Langdon, John Rock, Dorsey & Whitney LLP, Minneapolis, Minnesota; and Tony P. Trimble, Matthew W. Haapoja, Trimble & Associates, Ltd., Minnetonka, Minnesota, for petitioners.

Lori Swanson, Attorney General, Christie B. Eller, Deputy Attorney General, Kenneth E. Raschke, Jr., Assistant Attorney General, St. Paul, Minnesota, for respondents Mark Ritchie, Minnesota Secretary of State, and the Minnesota State Canvassing Board.

Michael O. Freeman, Hennepin County Attorney, Patrick C. Diamond, Assistant County Attorney, Minneapolis, Minnesota, for respondent Hennepin County Canvassing Board.

William Z. Pentelovitch, Mary Vasaly, Maslon Edelman Borman & Brand, LLP, Minneapolis, Minnesota; David L. Lillehaug, Steven Z. Kaplan, Fredrikson & Byron, P.A., Minneapolis, Minnesota; and Marc E. Elias, Kevin J. Hamilton, Perkins Coie LLP, Washington, D.C., for intervenor-respondents.

OPINION

MEYER, Justice.

Petitioners Norm Coleman, Cullen Sheehan, and Cara Beth Lindell filed a petition and an amended petition pursuant to Minn.Stat. § 204B.44 (2008) concerning the November 4, 2008, election for United States Senator from the State of Minnesota. Petitioners asked the court to order, among other things, that no rejected absentee ballots be counted in the administrative recount then underway and that all issues related to such ballots be raised, if at all, in an election contest under Minn. Stat. ch. 209 (2008). After expedited briefing, the court heard oral argument on December 17, 2008. So as not to impede the orderly administration of the election, the court issued an order on December 18, 2008, granting in part and denying in part the petition, with this opinion to follow.

At issue here are absentee ballot return envelopes that were rejected by local election officials on and before election day. The process of voting by absentee ballot is governed by Minn.Stat. ch. 203B (2008). A voter first makes written application for an absentee ballot. Minn.Stat. § 203B.04 (2008). An absentee ballot is provided to the voter, along with a ballot envelope and a return envelope. Minn.Stat. § 203B.06.07 (2008). The voter marks the ballot with his votes, places the ballot in the ballot envelope, and places the sealed ballot envelope (and a voter registration application, where needed) in the return envelope. See Minn.Stat. § 203B.08 (2008). The voter fills in his name and address on the return envelope, completes a certificate of eligibility to vote by absentee ballot printed on the return envelope, and signs the certificate before a witness who also signs the return envelope. See Minn.Stat. § 203B.07, subd. 3. The return envelope (containing the ballot envelope in which the completed ballot has been placed) is then returned to the county auditor or municipal clerk. Minn.Stat. § 203B.08, subd. 1.

Under Minn.Stat. § 203B.12, subd. 2 (2008), two or more election judges examine each return envelope and mark it either "accepted" or "rejected."¹ The election judges are to mark the return envelope "accepted" if they are satisfied that all of the following four conditions are met:

(1) the voter's name and address on the return envelope are the same as the information provided on the absentee ballot application;

(2) the voter's signature on the return envelope is the genuine signature of the individual who made the application for an absentee ballot, and the certificate of eligibility to vote by absentee ballot has been completed as prescribed in the directions for casting an absentee ballot;

(3) the voter is registered and eligible to vote in the precinct or has included a properly completed voter registration application in the return envelope; and

(4) the voter has not already voted in that election, either in person or by absentee ballot.

Id. If the absentee ballot return envelope is "accepted," it is opened and the ballot envelope inside is placed in a separate ballot container. Minn.Stat. § 203B.12, subd. 4 (2008). The absentee ballot container is opened on election night, the ballot envelopes inside are opened, and the enclosed ballots are removed and deposited in the ballot box to be counted. Id.

If, on the other hand, any of the four requirements under section 203B.12 have not been met, the election judges are to mark the return envelope "rejected."² Section 203B.12, subdivision 2, states: "There is no other reason for rejecting an absentee ballot." Rejected absentee ballot return envelopes are returned unopened to the county auditor, and the ballots they contain are not counted on election night. Id.

On November 18, 2008, the Minnesota State Canvassing Board (Board) met to certify the results of the election held on November 4, 2008. Because the difference in votes cast for U.S. Senate candidates Norm Coleman and Al Franken was less than one-half of one percent, the Board ordered an automatic manual recount as required by Minn.Stat. § 204C.35, subd. 1(b) (2008).

According to the minutes of the November 18 meeting of the State Canvassing Board, a representative of Al Franken and the Al Franken for Senate campaign urged the Board to review all rejected absentee ballot return envelopes and include in its recount the votes of any absentee ballots that were improperly rejected. This request was opposed by representatives of Norm Coleman and the Norm Coleman for Senate campaign. In advance of the November 18 meeting, the Secretary of State had received an opinion of the Minnesota Attorney General's Office that absentee ballots that were rejected by election judges under Minn.Stat. § 203B.12, subd. 2, were not "cast" in the election and therefore were not within the scope of an administrative recount under Minn.Stat. § 204C.35, subd. 3 (2008). At its November 26, 2008, meeting, the Board unanimously rejected the Franken campaign's request as outside the scope of the Board's statutory authority under Minn.Stat. § 204C.33, subd. 3 (2008). However, the Board requested an opinion of the Attorney General as to whether and by what means absentee ballots that were not rejected for one of the four statutory reasons could be tabulated.

On or around December 2, 2008, the Secretary of State's Office asked local election officials to review all previously rejected absentee ballot return envelopes and determine the number of envelopes that were rejected for each of the four reasons provided in Minn.Stat. § 203B.12, subd. 2. The Secretary of State's Office asked local election officials to determine as well the number of absentee ballot return envelopes rejected for some reason other than one of the reasons provided in Minn.Stat. § 203B.12, subd. 2, or because local election officials were mistaken in concluding that the ballot envelope failed to satisfy one or more of the conditions in section 203B.12, subdivision 2. The Secretary of State's Office provided more detailed instructions for the sorting process on December 4, 2008.

By letter to the members of the State Canvassing Board dated December 10, 2008, the Minnesota Attorney General's Office identified and described four statutory mechanisms for correcting errors in the election process: correction of errors by county election officials as part of the canvassing process under Minn.Stat. § 204C.38 (2008) where the candidates agreed; correction of errors under Minn. Stat. § 204C.39 (2008) where the candidates did not agree; a petition filed under Minn.Stat. § 204B.44; and an election contest under Minn.Stat. ch. 209. The Attorney General's Office opined that local canvassing officials could amend their election returns under either section 204C.38 or 204C.39 before the results of the election were finalized. Finally, citing our opinion in Application of Andersen; Rolvagg v. Donovan, 264 Minn. 257, 119 N.W.2d 1 (1962), the Attorney General's Office opined that this court would likely uphold a determination by the State Canvassing Board to accept amended reports from county canvassing boards that included absentee ballots that were initially improperly rejected by local election officials due to administrative errors.

At its December 12, 2008, meeting, the State Canvassing Board was advised by a representative of the Secretary of State that in the 49 counties and municipalities that had thus far completed their voluntary sorting and reported the results to the Secretary of State, there were 4,823 rejected absentee ballot return envelopes, of which 638 had been determined by local election officials to have been improperly rejected. However, some counties had declined to participate in the voluntary sorting process. The Board unanimously recommended, but declined to order, that all county canvassing boards review rejected absentee ballot return envelopes for the purpose of identifying obvious errors in the rejection of those ballots, correcting those errors, and reporting new vote totals to the State Canvassing Board.

The petition and an amended petition in this case were filed on December 15, 2008. The petition alleged that the State Canvassing Board failed to provide uniform guidance to the counties on how to determine whether or not an absentee ballot return envelope was improperly rejected. The petition further alleged that the guidance given to counties by the Secretary of State's Office for sorting the previously rejected absentee ballot envelopes was incomplete and incorrect, resulting in the various counties applying different standards. The petition asserted that previously rejected absentee ballots should be addressed, if at all, in an election contest under Minn.Stat. ch. 209, and not as part of the recount process.

Al Franken and the Al...