Does the law allow not counting one vote when others just like it were counted by other counties and cities? Should a person’s vote count depending solely on where he or she lives? Should a contest court disallow votes based on counting rules it adopts but which no Minnesota county or city used on Election Day? Is it right to disallow a vote because the Minnesota Secretary of State’s database wasn’t up-to-date about whether the absentee voter or their witness were really registered?
Is Minnesota a state that seeks to disenfranchise voters, or to count all the legal votes?
That’s why yesterday’s three-judge contest court ruling is so wrong, and why we will appeal.
Their decision is a jarring contrast to the Minnesota tradition of counting all the votes. Its stern reading of state law disenfranchises thousands of voters by breaking starkly from the counties’ Election Day standard of allowing as many votes as possible (even if the counties used differing standards to get there).
Evidence at the seven-week trial showed that despite counting ballots on Election Night and again in the month-long recount, thousands of Minnesotans still have ballots that remain wrongly rejected and unopened. We asked for 4,800 ballots to be counted (later reduced to 1,358 by restrictive rulings from the three judges). Even Al Franken recognized the election’s flaws by the end of the trial and asked that 450 still uncounted ballots be opened.
Sadly, the three judges yesterday took the path of disenfranchisement at the expense of thousands of Minnesotans who have yet to have their ballots counted fairly and equally. These voters – who could be a friend, a neighbor or service member – have not had their votes counted, although ones marked just like them have been counted elsewhere in the state. Norm Coleman’s campaign is prepared to do everything in its power to protect their rights and to be sure the same standards are used to judge all of Minnesota’s ballots.
These voters remain disenfranchised because the Court changed the rules of the game on Friday, February 13th – long after the Election Day votes had been counted. Two and a half weeks into the trial and again yesterday, the court announced it would apply a “strict compliance” standard to judging the 11,000 unopened absentee ballots. That stands in contrast to the evidence at trial which showed that on Election Day, Minnesota’s counties and cities permitted ballots that “substantially complied” with the state’s laws to be counted. Altering the Election Day standard meant that thousands of ballots that would have been allowed on Election Day in most counties are now disallowed by the contest court.
The court’s order also creates three major problems of such significance that they undermine the confidence Minnesotans can ever have in knowing who received the most legally cast ballots in this election.
First, the evidence at trial showed that different counties used different standards to count ballots. While some jurisdictions, for example, checked on whether witnesses were registered or signatures matched, most did not. By not reconciling the different standards used by the counties and cities for allowing ballots, the court has created a constitutional equal protection violation — identical ballots have been treated differently depending solely on where the person lived and what standard that jurisdiction used.
Next, by defining in its Order which types of ballots are “illegal” under Minnesota law, but by not applying these rules to ballots already counted on Election Day and in the statewide recount, the court has ensured that ballots it has said are “illegal” under Minnesota law are included in the final count. The number of these counted – but illegal – ballots is far greater than the current difference between Al Franken and Senator Coleman, which should be of great concern to everyone.
And finally, the court has chosen to ignore the problems with the Secretary of State’s Statewide Voter Registration System. It was not until the end of the trial that officials admitted the database was still not complete (meaning valid ballots could have been denied simply because the voter or witness was not yet correctly marked as “registered” in the system) and that each county inputted its own data without any quality control from the Secretary of State, meaning that inconsistencies and inaccuracies do exist in the system.
The pattern of decisions made by this court has inevitably led to a weakening in the ability of Minnesotans to have confidence in knowing a credible outcome of this election contest. The path to a quick seating of Minnesota’s missing Senator would have been for the court to count all the votes, thereby eliminating the constitutional infirmities caused by the contrived line-drawing to disenfranchise voters.
But by continuing the disenfranchisement of thousands of Minnesotans whose ballots have been wrongly rejected while their fellow citizens’ identical ballots have been counted, the process will be prolonged.
Unfortunately, the court’s decision means that more time will be needed to get this election and recount completed in a fashion that instills confidence that every legal vote has been counted and all voters treated equally.