By Sarah Cherry
Analyst, Election Law @ Moritz
Moritz College of Law
The Minnesota Supreme Court’s 1975 decision in Bell v. Gannaway, 303 Minn. 346, (Minn. 1975) has received quite a lot of attention lately. A couple of things about Bell need more discussion. First, how significant to the court’s holding was its finding that candidates had the opportunity on election day to challenge invalid absentee ballots? Has that law and practice changed? Second, would the court have reached the same conclusion if it had been dealing with a contest of a statewide race like Coleman v. Franken? Does that matter now? Finally, what factual findings and reasoning would lead today’s contest court to reach a different conclusion than the court in Bell?
What has to happen to unring this Bell?
The Minnesota Supreme Court’s 1975 decision in Bell v. Gannaway, 303 Minn. 346, (Minn. 1975) has received quite a lot of attention lately. MinnPost.com’s Eric Black has written two analyses of the case. They are here and here. I wrote a piece about it as well here. A couple of things about Bell need more discussion. First, how significant to the court’s holding was its finding that candidates had the opportunity on election day to challenge invalid absentee ballots? Has that law and practice changed? Second, would the court have reached the same conclusion if it had been dealing with a contest of a statewide race like Coleman v. Franken? Does that matter now? Finally, what factual findings and reasoning would lead today’s contest court to reach a different conclusion than the court in Bell?
Challenges – election day and after
The Bell court revealed its dismay at having to hold that a clearly invalid ballot had to remain in the count because of statutory language regarding the timing of challenges to ballots. 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. The Bell court acknowledged that the statute’s phrase “but not otherwise” could be read to modify who can bring challenges rather than when challenges can be made. But the court went with the latter reading saying the legislature would have to clear this up if it found the court had assigned the wrong meaning to the words of the statute. (My previous piece on Bell also discusses this statutory language.) The statute was changed to its current wording in 1978 and any legislative history that might explain the reason for the change or any new intended meaning is not easily available. A law librarian at the University of Minnesota told me that audio tapes of the committee hearings are the only records available and are likely stored at the Minnesota Historical Society. My assumption is that helpful comments that would explain the change probably do not exist, but I will gladly admit error if someone in Minnesota would like to sift through those tapes looking for clues.
Bell’s reasoning as to the timing of challenges appeared to also depend on the assumption that challengers were supposed to and had the opportunity to challenge ballots at the polling place before they were deposited in the ballot box and irretrievably commingled with valid ballots. The Bell court cited MSA 204.17 in support of the proposition that candidates have a statutory right to inspect and challenge improperly completed absentee ballot envelopes on election night before they are deposited into the ballot box under the statute’s language permitting challengers to challenge voters’ eligibility. Today’s MSA 204C.12 says in almost identical language to MSA 204.17 “An election judge shall, and an authorized challenger or other voter may, challenge an individual whom the person knows or reasonably believes is not an eligible voter.”
So, the law appears to be the same but what about the practice? Ramsey County Elections Director Joe Mansky told MinnPost.com that it is not possible for candidate representatives to challenge the deposit of absentee ballots into the ballot box (candidates do not appoint their own challengers in partisan elections) but that challengers appointed by the political parties may do so. However, he said that such party challengers never do this. Perhaps this is because the absentee ballots have already been examined and accepted at the county level before being transported to the precincts for counting. While the law then and now says nothing explicit about challengers being permitted to inspect and challenge the proper completion of absentee ballot envelopes, the Bell court interpreted the law permitting challenge to voter qualification to allow such inspection and challenge of absentee ballots. Evidence of the practice that has developed (or disappeared) since 1975 could shed light on whether the basic assumptions underlying Bell’s holding are still valid.
What would the Bell court have done with a case like Coleman v. Franken?
The Bell court could very well have come to a different conclusion had it been dealing with a statewide race where not one but thousands of ballots were in dispute. Bell involved an election for township supervisor in which just over 200 votes were cast (fewer than the margin now separating Franken and Coleman) and the decision came down to a single vote that was invalid due to both an official error and a voter error. The official witnessed the ballot before giving it to the voter’s husband to take to her and the voter did not sign the ballot envelope. Her vote was opened and counted by the election judges on election night. Would the Bell court have let that woman’s ballot remain in the count if all of the mistakes had been made by her with no contribution by the election official who issued the ballot? The dissent calls her failure to sign the envelope a flagrant violation of the law but is it really flagrant to forget to sign your ballot envelope? Perhaps it would be a flagrant violation to vote without registering or to have “Lizard People” witness your ballot. But not signing the envelope, while a serious defect, is not necessarily a flagrant and willful violation on the part of a voter that was more likely just forgetful.
As to challengers, did the Bell court really hold that candidates in any election must have a challenger in every polling place or lose his or her opportunity to challenge invalid votes? The majority attempted to address the dissent’s criticism of this burdensome requirement by saying it’s not completely out of bounds to expect such staffing of polls with challengers and noting besides that the election in Bell involved a single precinct. It was as if to say it needn’t cross that bridge now because this was a small election where it is entirely reasonable to expect a challenger to have been on duty and to have challenged this particular ballot for lack of a voter signature.
One difference between the 1975 Bell circumstances and today’s contest is that township supervisor was apparently a nonpartisan office. The Bell court discussed MSA 204.16 subd. 2 which, like its successor, today’s MSA 204C. 07, permits candidates for nonpartisan office to appoint challengers to be present at the polls on election day. It was this kind of challenger that the Bell court argued could have challenged the invalid absentee ballot on election night. Both MSA 204.16 and today’s MSA 204C.07 also provide that political parties appoint the challengers for partisan elections and that only one per party at a time may be present in the polling place. In Coleman v. Franken, a partisan race is being contested in which candidates were not permitted to appoint their own representatives to act as challengers. Political parties, however, were authorized to appoint challengers that theoretically could have acted on Coleman’s behalf. This may be a meaningless difference since challengers, no matter how appointed, have the same duties and their actions are controlled by the same statutes. But it is a difference nonetheless.
Conclusion
As we lawyers and commentators always say, it is impossible to know what this court will do. It has referred to Bell’s requirement of strict compliance with absentee ballot laws multiple times but it has not yet commented on whether or not Bell requires challenges to the inclusion of absentee ballots to be made before they are deposited into the ballot box. Following past precedent is a core feature of the American justice system, but that, of course, does not mean that laws and the interpretations of laws do not change over time. While outright overruling of past decisions is rare, it is not so rare for a court to distinguish one set of facts from another in the distant past so that a new legal conclusion must be reached. In this case, it would not be impossible for the contest court to reason that Bell does not require in every case that invalid ballots remain in the count just because they were not challenged before they were commingled. If the practice has changed with respect to what challengers are permitted to do at the polls, for example, it would be possible for the contest court to arrive at a different conclusion about what should be done with invalid ballots. This contest court may well agree with the dissenters in Bell that limiting the time frame for permissible challenges to election night in every case could result in violations far more serious than forgetting to sign a ballot envelope controlling the outcome of an election. The court could, therefore, decide that the Bell rule is not to be universally applied to elections large and small, complex and simple.