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Democratic Senate candidate Al Franken has the right to see a list of voters in one Minnesota county whose absentee ballots were rejected by local election officials, a judge ruled Wednesday afternoon.
Ramsey County District Judge Dale Lindman granted the former Saturday Night Live comedian's campaign a temporary restraining order and said Ramsey County election officials must turn over the voter lists at the end of the day Wednesday. Ramsey County is Minnesota's second largest county. Moreover, Lindman ordered county election officials to provide Franken's campaign with "existing written information regarding the reason for accepting or rejecting an absentee ballot."
But Franken is prohibited from questioning election officials about their reasons for rejecting certain absentee ballots. Lindman ruled that the data Franken is seeking is public information under Minnesota's Data Practices Act, which says all government data is public record. Franken's campaign would be "irreparably harmed" if the lists were withheld.
"With each passing hour, the Franken campaign is irreparably harmed in its efforts to ensure that each valid vote is properly counted and to prepare for the procedures that will decide this election," Lindman wrote in his order. "By contrast, the county of Ramsey will suffer no harm from providing information that, even absent plaintiff's request, it must organize and maintain." Franken is battling Republican incumbent Norm Coleman, who holds a 215 lead against his Democratic challenger. The razor-thin margin triggered an automatic recount, which began Wednesday. A winner in race will be named in mid-December, state election officials said.
Franken's campaign wants to review the lists to ensure that individuals whose ballots were rejected were truly ineligible to vote.
David Lillehaug, a Franken campaign attorney, told Lindman information provided to the campaign by more than a dozen other counties showed cases where voters believed their absentee ballots were wrongfully rejected. Voters who cast absentee ballots "did everything right, and yet their votes were not counted," Lillehaug said. "It is clear to us that mistakes have been made."
Franken filed a lawsuit last week seeking access to the lists after Ramsey County election officials refused to voluntarily turn it over on privacy grounds. His campaign is hoping that Lindman's decision will prompt other counties in the state to turn over similar lists.
The voter lists Franken's campaign will receive won't include information on how people voted. But Coleman's campaign attorney Fritz Knaak said Wednesday he thinks Franken's campaign will "pound on people's doors" and ask them whom they voted for. Franken is expected to challenge the legal basis election officials had for rejecting some of the ballots. He will likely urge the state Canvassing Board to include some of the absentee ballots that were rejected in the recount that started Wednesday.
Franken's campaign believes that some of the absentee ballots that were wrongly rejected, if included in the recount, could swing the election in his favor. His campaign says it has already obtained evidence that shows hundreds of legitimate voters had their absentee ballots disqualified on "mere technicalities." Franken campaign officials said election officials in several Minnesota counties voluntarily gave the campaign information about absentee ballots.
The Associated Press reported Friday that more than 25,000 ballots in Minnesota counties that voted for Barack Obama did not register a vote for either Coleman or Franken, which could be explained by a misreading of ballots by the state's optical scan voting machines.
"Though some voters may have intentionally bypassed the race, others may have mismarked their ballot or optical scanning machines may have misread them, the AP reported.
"There's one more critical statistic: About 8,900 people weren't recorded as voting for president, according to county-by-county turnout estimates kept by the Secretary of State's Office," the AP report said.
"That nearly 9,000 people would skip the closely watched race is questionable, raising the possibility that as many as 33,700 ballots might be subject to change in a hand recount. What recount teams will be looking for is whether stray or light marks on ballots signaled a voter's preference."
On Monday, Franken called on the board to delay the certification process and review absentee ballots that were rejected by state election officials.
"The [canvassing] board must consider and take into account all ballots cast -- including validly cast absentee ballots that have been wrongfully rejected," states a legal memo Franken's lawyer sent to the board.
Franken's attorneys reiterated their appeal to the board Tuesday. His campaign filed a legal brief alleging, "The campaign has now become aware that, contrary to state law, at least 49 of the 87 counties in the State in fact failed to canvass every precinct."
Verifying the votes from local election officials who did not adhere to those guidelines would be a failure to comply "with Minnesota canvassing law requirements designed to ensure that the information this board is being asked to certify as correct is, in fact, complete and correct."
Franken's campaign filed a legal brief with the Canvassing Board Monday that contained sworn affidavits from Jessup Schiks, Bruce Behrens, James Langland and Ordell Adkins, all of who voted for Franken via absentee ballot and had their ballots rejected for reasons that included signatures that didn't match one that were on file with the state or inconsistent mailing addresses.
In the case of Langland, he voted by absentee ballot prior to Nov. 4, in person, at his local election office, because he said he was going to be out of town on Election Day. However, his ballot was rejected due to the absence of a witness signature.
"Dr. Langland did everything correctly," said Mark Elias, an attorney working with the Franken campaign on the recount, during a press conference Monday in St. Paul. "He actually went to the recorder's office and asked them to witness the signature. And due surely to human error and nothing more, it resulted in it being rejected."
In a three-page opinion issued to Secretary of State Mark Ritchie on the matter, Minnesota Assistant Attorney General Kenneth Raschke Jr. said the Canvassing Board's job is to count the ballots, and any decision on whether absentee ballots should be included in the recount is for a judge to decide.
"Courts that have reviewed this issue have opined that rejected absentee or provisional ballots are not cast in an election," Raschke wrote.
But Franken's attorneys said Raschke's opinion contains "significant error."
"In fact, both state law and key decisions from other states require that improperly rejected absentee ballots be included in the recount of an election," says the seven-page legal brief Franken's attorneys filed with the Canvassing Board Tuesday. "The Board can, and should, make it clear that those ballots can and should be included during the course of this recount."
The Canvassing Board said it would decide in a few days what to do about the absentee ballots that Franken's campaign said need to be reviewed.
Coleman's campaign, meanwhile, said Franken's attempt to get the Canvassing Board to include absentee ballots in the recount proves that the Democratic challenger does not have the votes to win the election.
"The Franken campaign's decision to demand that the State Canvassing Board accept rejected absentee ballots was a blatant admission they do not have the votes to overturn the re-election of Norm Coleman," said Fritz Knaak, Coleman's recount attorney. "However, their public statement that - failing to succeed in this desperate and unprecedented act tomorrow - they will ask the State Canvassing Board to stop the recount is breathtaking in its far-reaching scope that could leave Minnesotans without a senator in January. Minnesotans will not stand for this obvious effort to win through a legal system what the Franken campaign could not win through the ballot box."
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