Liveblog: Minnesota State Canvassing Board

The Minnesota Independent liveblogged and tweeted (at MnIndyLIVE) the Nov. 26 State Canvassing Board meeting, at which Minnesota Secretary of State Mark Ritchie led the five-person board in considering the Al Franken for Senate campaign’s request that they find a way to count votes from all improperly rejected absentee ballots.

9:30: Despite all eyes being on Minnesota’s recount, the room is only half filled. The five members of the canvassing board have taken their seats. Secretary of State Mark Ritchie calls the meeting to order.

9:34: Other recount results are announced: Lisa Fobbe (SD 16), Al Doty (HD12B) and Gail Kulick Jackson (HD 16A), all Democrats, have officially won their races.

9:36: Now the discussion turns to challenged ballots: both campaigns believe the number of contested ballots can be decreased.

9:37: An election official in Sherburne County reports 800 challenges, with roughly 15,000 ballots left to count.

9:42: Mark Ritchie says more than 12,000 absentee ballots were rejected. He adds that the Attorney General has not weighed in on the canvassing board dealing with such issues; some have challenged the appropriateness of the board addressing rejected absentee ballots.

9:46: G. Barry Anderson moves that the board NOT review rejected ballots: “There are no historical examples of a canvassing board actually including rejected absentee ballots.”

9:47: Edward Cleary disagrees; he’s “not persueded by case law we’ve been provided.”

9:57: Gearin says it would be absurd not to count. Local election judges should review whether they have ballots that were not rejected but also not counted. But she doesn’t want this board to evaluate them. She’s the third vote against the Franken proposal, so it’s dead.

10:00: Ritchie: Should all rejected absentee ballots go to court? No support here for opening ballots. But there is support here for examining how they’re handled. Anderson signals some openness to addressing the problem in another way. Ritchie answers Gearin’s concern that law and procedures already provide for finding uncounted absentee ballots.

10:05: Chief Justice Eric Magnuson speaks for the first time. Rejected ballots are not cast ballots, and cast ballots are what this board is supposed to deal with. Cites historic cases in the Supreme Court that say judicial, not ministerial, officers (such as the canvas board) should decide such things.

10:10: Magnuson: “We’re not going to lose any ballots. They’re all going to be kept safe.” Cleary asserts that statutes have expanded the board’s powers since the 1800s cases Magnuson cites. Cleary: People vote absentee out of necessity (sometimes). Their votes need to be taken as seriously. Ritchie friendly amendment: intent to count illegally rejected absentee ballots. Cleary clarified re: fifth pile of improperly rejected ballots is not out of our purview. Unanimous approval of motion.

10:15: Magnuson asks Ritchie can’t he do this without the canvas board taking action. Sorting the ballots into five piles at the local level: “It’s asking a lot of people of whom a lot has already been asked of.” Magnuson on a question that arose in the 1962 Minnesota governor recount (Anderson v. Rolvaag). Could canvas board accept amended returns from county canvas boards? Ritchie doesn’t know. Could get attorney advice. Anderson: “Once we get into the woods of opening ballots … ” He’s reluctant to get into that area without advice from the attorney general. Cleary says there are only four grounds to reject, so any ballot that doesn’t fit in those four categories should be subject to opening (if it’s an absentee ballot in an outer envelope).

10:20: Ritchie suggests that the so-called fifth pile of uncounted absentee ballots should return to this board. Asks for opinions. Gearin: It’s either in those four categories and rejected or in the fifth pile and should be counted. Magnuson: “At some point in the process you’ve got to stop counting. … At some point in time the count is certified and it’s done. Are we at a point in time when if additional ballots are found, could they be counted? Or are we beyond that?” Ritchie: Not beyond it until we’ve signed off. Magnuson: We don’t have authority to tell local election judge how to rule. That kind of dispute has to be taken up in an election contest (i.e. a lawsuit). Cleary: Respectfully disagree with Magnuson and agree with Gearin: must count fifth-pile ballots. Anderson: Needs attorney general opinion. Ritchie: “Typically they say we’ll get back to you on that.” Ritchie: “There’s a whole ‘nother problem here and that is keeping the cooperation of the people [who are doing the recount].” Staffer points to correction of errors when both sides agree in statutes. 

10:25: Cleary says candidates can still challenge the ballots inside the absentee envelope. [I have a question: Aren't local election officials supposed to mail back rejected absentee ballots to voters? The state or counties don't have those ballots anymore, except for a photocopy of the envelope at most.] Gearin: “If it’s in the fifth pile, it should be opened and counted.” Ritchie: More to say? Cleary: What about my motion? Anderson: Make motion now or wait for advice from counsel? Ritchie: “I hear a general agreement with moving ahead with sorting. This is a very important next step for all of us. … There are other forces at play here: candidates’ counsels, citizen groups.” Magnuson: “it would be unwise for us to make a decision right now without hearing from the attorney general’s office.”

10:30: Gearin: Commends the local election people. “We should be proud of them, and proud of our state.” Approved by acclamation. 

End of meeting.