By Sarah Cherry
Analyst, Election Law @ Moritz
Moritz College of Law
Question: Assuming that invalid absentee votes have been cast and counted in Minnesota’s U.S. Senate race without any way to retrieve them, what remedy does Minnesota law provide when the number of such invalid absentee ballots exceeds the margin of victory?
This comment addresses a scenario which is not yet ripe for judicial consideration in that Coleman has not (yet) shown that there were more invalid votes counted than the number that now separates the two candidates—and it is possible that the court will consider him procedurally barred from raising this issue at this stage of the trial. For our purposes, we will define valid and invalid votes in accordance with the court’s Feb. 13 order. (Reference is made to “legal” and “illegal” votes in the following analysis because that is how the case law refers to them.) We will assume that Coleman can and will prove that enough invalid ballots were included in the count to possibly alter the outcome of the election. Coleman has produced a list of ballots where the witness’ registrations were not confirmed by county officials before officials accepted absentee ballots, but these are not automatically invalid ballots as many of the unconfirmed witnesses likely were registered. However, Coleman’s preliminary analysis of 5 counties and municipalities shows just under 100 ballots that do not comply with the contest court’s Feb. 13 order. He would likely find more than 225 invalid ballots if such a pattern held up statewide. Coleman has made a motion to have the Feb. 13 order applied to all absentee ballots cast and counted on and since election day.
Where invalid absentee votes have been commingled and counted with legal votes, there are several possible remedies: 1) leave the invalid votes in the count and count the remaining votes in strict accordance with the law – two wrongs do not make a right; 2) remove the invalid votes from the total of the candidate for whom they were cast, (assuming this can be determined); 3) remove the invalid votes from the total votes counted by proportionally deducting them from each candidates’ totals by precinct, city, or county (assuming that it cannot be determined for whom the invalid votes were cast); 4) invalidate the election because it cannot be determined for whom the invalid votes were cast. Minnesota law is unclear on exactly which course must be taken. The court’s orders indicate that it is leaning toward option 1, to count votes prospectively in strict accordance with the law regardless of how they were counted prior to the contest. The court does not appear to believe that there were systematic problems with Minnesota’s election system such that an equal protection violation exists, but it has not finally ruled on this issue.
1. Leave the invalid votes in the count; count the remaining ballots in strict accordance with the law.
The court seems to be leaning this way but may have some problems sticking to this path if Coleman indeed comes up with a large number of invalid votes. Coleman’s memo in support of his motion to apply the Feb. 13 order to all absentees cites a 1994 Supreme Court case, Rivers v. Roadway Express, Inc. 511 U.S. 298 (1994), for the proposition that a court’s interpretation of statute is an authoritative statement as to what the statute meant before as well as what it means now. The actual quote is, “A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers at 313. Footnote 12 explains, “But when this Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law.” Id. The Rivers argument may be a weak one in that U.S. Supreme Court opinions may not be authoritative on how Minnesota courts interpret Minnesota law. Coleman is trying to show the 3-judge court that the Rivers approach should be persuasive by analogy.
During the Feb. 27 hearing on Coleman’s motion to have all absentee ballot envelopes reviewed in search of invalidly cast ballots, Judge Marben asked Coleman’s attorney James Langdon why the court should not follow the Minnesota Supreme Court’s 1975 decision in Bell v. Gannaway, 227 N.W.2d 797 (Minn., 1975) and hold that absentee ballots may not be challenged after they are deposited in the ballot box. In response, Langdon said that Bell dealt with a statute for challenging ballots on election day and that, today, challengers are not armed with the knowledge they need to object to the counting of absentee ballots.
In Bell, Bell contested the election of Gannaway to the office of township supervisor which Gannaway had won by one vote. The crucial vote in that case was cast absentee by a woman who neglected to sign the ballot certificate and who had not properly observed the witness requirements because a town official had filled in the witness portion of her ballot envelope before she even received it. The statute that formed the basis of Bell read in 1975:
The voter and the ballots of any absent voter at any time before the ballots have been deposited in the ballot boxes are subject to a challenge by the judges or by any person who was not present at the time the voter procured the ballots, but not otherwise.
Bell at 805, quoting former M.S.A. 204.11(4). The court seized upon the phrase “but not otherwise” and construed it “to mean that an absentee ballot may not be challenged at any time after the ballot has been deposited in the ballot box.” Id. The new version of the statute, M.S.A. 204C.13, similarly reads:
At any time before the ballots of any voter are deposited into the ballot boxes, the election judges or any individual who was not present at the time the voter procured the ballots, but not otherwise, may challenge the eligibility of that voter and the deposit of any received absentee ballots in the ballot boxes.
The language, while arranged differently, is still ambiguous. Minnesota law still allows one challenger per candidate to be present at the polls during voting and vote-counting so it is not clear what changes Langdon was referring to when he implied that the statutes then and now were significantly different.
The court has cited Bell several times in its orders in support of the requirement of strict compliance with absentee statutes and to point out that fraud prevention is a key concern in the policy underlying the development of Minnesota absentee ballot law. It would appear contradictory for the court to hold that Bell requires them to allow the counting of ballots that they know to be invalid according to their Feb. 13 order simply because it interprets Minnesota law to require challenges to absentee ballots to be made on election day. The court in 1975 had an easier decision to make as they were dealing with only one deficient absentee ballot.
2. Determine for whom the invalid votes were cast and remove them from the candidates’ totals accordingly.
This remedy assumes that it can be determined for whom any invalid votes were cast. It would be a massive and lengthy undertaking for Coleman to gather and present persuasive evidence that enough invalid votes were cast for Franken to render Franken’s lead invalid. In past Minnesota contests that have resulted in published judicial opinions, the number of votes in dispute has been very small – from one or two votes to a couple of dozen. (This analysis does not yet include a thorough study of the 1962 gubernatorial election contest and recount which may have seen discussion of un-counting invalid votes that would inform today’s debate.) Even if Coleman could get enough voters on the stand to testify as to who they voted for, it is unclear in Minnesota law whether this would be permitted because it would harm the confidence of the public in the secrecy of their ballot if they thought they might someday have to tell the world how they voted in a court room. Coleman’s position appears to be that he does not know yet for whom any invalid ballots were cast or if enough were cast to overturn the election’s outcome but also that they cannot know this without investigating via this contest.
A Minnesota appeals court held that when illegal ballots are inseparably commingled with legal ballots, the contestant can sustain an election contest by showing that the contestee did not get a majority of legal votes. Kearin v. Roach, 381 N.W.2d 531 (Minn.App., 1986). The only way to do this is by showing that a sufficient number of illegal votes were cast for the contestee to change the result of the election. According to the Kearin court, the right to ballot secrecy deprives the contestant of offering direct testimony of how illegal votes were cast, but “circumstantial evidence is sufficient to sustain a contestant’s burden of proof if it has the requisite degree of persuasion.” Id. at 533. However, the 1917 Minnesota Supreme Court case that Kearin cites for that proposition actually did not disallow direct evidence of how a voter voted. It merely did not require it. Berg v. Veit, 162 N.W. 522 (1917). Berg involved no attempt to prove for whom the invalid ballots were cast. However, in a 1924 case, Mathison v. Meyer, 159 Minn. 438 (Minn. 1924), the contestant showed that voters of invalid ballots had worked on the contestee’s campaign, and that was enough circumstantial evidence to find that the ballots had been cast for contestee. It is unclear what will happen if Coleman does not have any evidence of this kind; will he be entitled to rely on proportionate deduction, may he subpoena voters notwithstanding their right to secrecy, or will he necessarily lose?
3. Remove the invalid votes from the total votes counted by removing them from each candidates’ totals pro rata by precinct
There is no Minnesota case law requiring that this remedy be employed. This remedy may be available if it cannot be determined for whom the invalid votes were counted, but it is not clear what kind of burden the contestant would have to meet to obtain such a remedy. No Minnesota case exists where this remedy has been implemented. In a 1917 Minnesota Supreme Court case, the court appeared to leave the door open to this remedy being used but said that the contestant would have to satisfy the court that he could not prove for whom any illegal ballots were cast. Berg v. Veit, 136 Minn. 443, (1917). The court said, “Purging an election of illegal votes by deducting a pro rata part of them from the votes for each candidate is justifiable only when it is impossible to show for whom they were actually cast.” In Berg, the court found that evidence existed that could have been introduced to show for whom any illegal ballots were cast but that contestant did not attempt to introduce it nor to persuade the court that the truth of how the ballots were cast could not be ascertained.
In a 1941 decision, the court, while not shutting the door for good on the pro rata method, did not use it or necessarily clear the way for its use. Coleman cites in support of his motion Hanson v. Emanuel, 210 Minn. 271, 297 N.W. 749 (Minn. 1941) for the proposition that illegal votes cannot be counted at all, let alone apportioned between candidates. The court said, “We referred in [Berg], to certain cases holding that illegal votes may be apportioned where it cannot be ascertained for whom they were cast…” (The court is referring to cases in other states cited by Berg.) In Hanson, the court was discussing a vote known to have been illegally cast for a certain candidate that had been apportioned between the candidates, each getting half of the vote, rather than excluded altogether.
Coleman did not mention the pro rata deduction remedy in his motion and only mentioned it for the first time in the Feb. 27 hearing. In the memorandum supporting his motion, Coleman’s team did not engage in the analysis above which leaves one to wonder whether they think the court will entertain such a remedy or if they instead are still seriously seeking to have the court reconsider its Feb. 13 order which strictly limited the definition of a legally cast ballot. Coleman’s team did cite another case, Johnson v. Trnka, 154 N.W. 2d 185, 187 (1967), for the proposition that “The outcome of an election should rest upon ballots received according to law and should not be determined by illegal votes.” This case is distinguishable from Coleman v. Franken in that Minnesota statute provides a remedy of random withdrawal when there are excess ballots (more ballots than voters signed in), as there were in Johnson, but provides no such explicit remedy when illegally cast ballots are commingled and included in the count. M.S.A. 204C.20; 206.86.
Some states have employed pro rata deduction. For example, in 1991, an Illinois court approved the pro rata deduction method of removing illegal ballots in an alderman election. People ex rel. Ciaccio v. Martin, 220 Ill.App.3d 89, 580 N.E.2d, 930 Ill.App. 3 (Dist.,1991). But, it is not a common remedy and Minnesota law does not provide for it in statute.
4. Invalidate the election
It does not appear that this court will invalidate the election. This remedy may not be available as it is not explicitly spelled out in statute and the court has a duty to determine which candidate received the most votes. Even if this cannot be done to the satisfaction of statisticians, it is not a legally impossible task. The Minnesota Supreme Court in 1955 did invalidate the votes from an entire precinct in an election where many rules had been broken in the precinct and, while no fraud was shown, the circumstances were ripe for fraud to have taken place. The court held that the absence of fraud will not always mean an election was valid where so great an opportunity for fraud was created by ignoring the election laws. In re Contest of Election of Vetsch, 245 Minn. 229 (1955). In no case since Vetsch has a Minnesota court found such a complete disregard for election laws that the true will of the people was not reflected in an election’s outcome, requiring the invalidation of a jurisdiction’s entire vote. That case had to do with fraud and the circumstances that foster fraud, and neither of these conditions are alleged by Franken or Coleman to have existed in the November 2008 election.
Conclusion
Coleman has provisionally rested his case as of March 2, 2009. As Franken prepares to present his case, the court must decide whether to grant or deny Coleman’s motion to apply the Feb. 13 order to all absentee ballots. It is impossible to predict what the contest court will do, but its orders so far have shown a desire to give Minnesotans a final answer as to which candidate received the most votes for U.S. Senate. Reopening deliberations on all 280,000 absentee ballots would significantly delay the result. On the other hand, the court has not fully disposed of the equal protection claim that Coleman has tried to keep alive throughout the contest. The court must now either leave allegedly invalid ballots in the count, attempt to remove them or decide that it cannot be determined who received the most votes in this election. Thankfully, such a decision is near at hand and, hopefully, the court will be unanimous in its conclusion.