Coleman v. Ritchie

ORDER

Petitioners Norm Coleman, et al., have filed a petition and an amended petition under Minn.Stat. § 204B.44 (2006) concerning the election for United States Senator from Minnesota held on November 4, 2008, in which petitioners ask this court to (1) order county election officials and county canvassing boards to take no additional action related to rejected absentee ballots until further order of this court; (2) direct all respondents that no rejected absentee ballots be counted in the pending administrative recount and that all issues related to such ballots are to be raised, if any party so chooses, in an election contest under Minn.Stat. ch. 209 (2006); (3) order that all rejected absentee ballot envelopes and corresponding ballots be preserved and kept segregated in a manner permitting the ballot to be linked to its envelope in the event of a future election contest; or (4) in the alternative, designate procedures specified in the petition to be followed if county canvassing boards are allowed or directed to open and count previously rejected absentee ballots. In addition, petitioners separately filed a motion for a temporary restraining order or temporary injunction.

The legislature has created processes for correction by county canvassing boards of “obvious errors in the counting and recording of the votes.” Minn.Stat. §§ 204C.38 and .39 (2006). In reliance on section 204C.39 in particular, it has been suggested or recommended to county canvassing boards that they may identify previously rejected absentee ballot envelopes that were rejected in error and now open those envelopes, count those ballots, and submit amended reports of the number of votes received by each candidate to the county auditor for submission to the State Canvassing Board.

We conclude that improper rejection of an absentee ballot envelope is not within the scope of errors subject to correction under sections 204C.38 and .39, and therefore county canvassing boards lack statutory authority to count such ballots and submit amended reports on that basis. But where the local election officials and the parties agree that an absentee ballot envelope was improperly rejected, correction of that error should not be required to await an election contest in district court. See Andersen v. Donovan, 264 Minn. 257, 119 N.W.2d 1 (1962); Minn.Stat. § 204B.44 (2006).

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED THAT:

1. The petition of Norm Coleman et al., for relief under Minn.Stat. § 204B.44 be, and the same is, granted in part and denied in part.

2. All local election officials, county canvassing boards, the Secretary of State, and the Minnesota State Canvassing Board are enjoined from opening any previously rejected absentee ballot envelopes and from including any previously rejected absentee ballots in the administrative recount now underway, except as provided herein,

3. Because previously rejected absentee ballots that all agree were rejected improperly should be counted, and in light of the fact that the State Canvassing Board has not yet certified the final results of the recount, we order candidates Norm Coleman and Al Franken and their campaign representatives, the Secretary of State, and all county auditors and canvassing boards to establish and implement a process, as expeditiously as practicable, for the purpose of identifying all absentee ballot envelopes that the local election officials and the candidates agree were rejected in error. The' local election officials shall identify for the candidates’ review those previously rejected absentee ballot envelopes that were not rejected on any of the four bases stated in Minn.Stat. § 203B.12 (2006), or in Minn. Stat. § 203B.24 (2006) for overseas absentee ballots. Any absentee ballot envelopes so identified that the local election officials and the candidates agree were rejected in error shall be opened, the ballot shall be counted, and its vote for United States Senator added to the total votes cast for that office in that precinct. A candidate shall be permitted to challenge the declaration of which candidate for United States Senate such a ballot is to be counted for, using the challenge standards utilized during the pending recount process. The respective county canvassing board shall file an amended report including the absentee ballot(s) so counted, and the State Canvassing Board shall accept the amended report and include its numbers in the pending recount. If in any county there are no absentee ballot envelopes that the local officials and the candidates agree were rejected in error, the county canvassing board shall notify the State Canvassing Board that no amended report will be submitted for that county. The State Canvassing Board shall not certify the final results of the recount prior to receipt of either an amended report or a notice of no amendment from each county canvassing board. Although we recognize the extraordinary efforts of local election officials already expended related to this election and are loath to impose additional burdens, particularly at this time of year, the compelling need to move toward a conclusion requires the imposition of a deadline for completion of the process directed herein. Accordingly, all amended reports and notices of no amendment shall be transmitted to the State Canvassing Board not later than 4:00 p.m., December 31, 2008.

4. In reviewing previously rejected absentee ballot envelopes for purposes of reaching agreement whether the ballot envelope was rejected in error, the parties are reminded of their obligations under Minn. R. Civ. P. 11 that by presenting a pleading or other paper to the court, any attorney or unrepresented party is certifying to the court that such pleading or other paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. In the event of a subsequent election contest under Minn.Stat. ch. 209 in which a party seeks a determination by the district court as to the propriety of the rejection of absentee ballots, parties and their counsel shall be subject to sanction for any previously rejected absentee ballot that was made available to the parties for review pursuant to paragraph 3 of this order and as to which the court determines the standards of Rule 11 were not met.

5. Petitioners’ motion for a temporary restraining order or temporary injunction be, and the same is, denied as moot.

6. So as not to impair the orderly election process, this order is issued with opinions to follow.

BY THE COURT:

/s/ Helen M. Meyer Associate Justice

MAGNUSON, C.J., and ANDERSON, G. BARRY, J., took no part in the consideration or decision of this matter.