Liveblog: The Minnesota State Canvassing Board

Cindy Reichert

The Minnesota State Canvassing Board met Friday morning to discuss what to do about wrongly rejected absentee ballots and 133 missing Minneapolis ballots in the statewide Senate election recount. Here’s a liveblog of what happened.

9:35 a.m.: The players are: From the Minnesota Supreme Court, Chief Justice Eric Magnuson, Associate Supreme Court Justice G. Barry Anderson; from the Ramsey County District Court, Judges Kathleen Gearin and Edward Cleary; and Secretary of State Mark Ritchie.

Ritchie wants to waive attorney-client privilege regarding an opinion from the state attorney general’s office. Passes unanimously and copies will be distributed in the room.

(By the way, I’m typing this based on the live feed from The UpTake. My colleague Paul Demko is on site and will be twittering at MnIndyLIVE.)

The campaigns have made more than 2,000 withdrawals from the total of 6,655 challenged ballots, leaving 4,472 challenged ballots. Sighs all around. Gearin talks tough on the seriousness of the matter; These better be real challenges, she says. Magnuson mentions people in the hall with signs reading “Count my vote.”

9:45 a.m.: Ritchie outlines a proposed process for handling the ballots for the board’s recounting starting next Wednesday.  He urges campaigns to get down the numbers of challenged ballots “to what’s appropriate.” He’s going to introduce Cindy Reichert, director of elections in Minneapolis.

Reichert: “Prior to Dec. 3″ her staff noticed unusual numbering on the envelopes from Precinct 1, Ward 3. On Dec. 2, they noticed that they didn’t have all the envelopes. Tape from the counting machines showed arithmetic errors (not unusual) so they continued to double-check. Reichert returned to her office from the elections department warehouse to consult the voter registration cards.

10:05 a.m.: Magnuson: The election return is prima facie evidence of what occurred at the polling place. The officials here have acted in the best interest of the public in their search. We have no authority and no reason to direct the City of Minneapolis to report anything to us other than what they have.

The case they’re citing is called “Moon” — I don’t think they’re really talking about consulting the lunar charts to decide the election.

Ritchie‘s motion is to accept the Minneapolis machine totals. Passes unanimously. The 133 votes will count.

Mark Ritchie

10:10 a.m.: Ritchie introduces staff report from deputy secretary of state Jim Gelbmann on the sorting at locations around the state of rejected absentee ballots into five piles: four for the legal reasons for rejecting and one for no good reason. Of those locations, 49 have completed their work, three have completed, but no report yet. And 23 will start sorting today. So far, there have been 4,823 rejected absentee ballots looked at by local election officials. Of those, 638 of those have been determined to be wrongfully rejected by the local officials or a trained election judge. Average of 13.2 percent of all rejected absentee ballots.

10:15 a.m.: Attorney General Lori Swanson testifying now. She says this canvassing board can request that the county election boards reconvene to correct the count. Cites Andersen case (from 1962?) in which selected counties’ reports were allowed to be inserted into the state count. Nothing prevents the board from making the request. Gearin: I hear you say we can take two actions. First we recommend that the counties count the wrongfully rejected absentee ballots. Second, we could accept their corrections. Some have already done it, so we have to do something about those no matter what.

10:15 a.m.: Swanson: You have the authority to recommend to the county canvassing board. Gearin: It’ll be part of an election contest. More questions. Magnuson asks Gelbmann which counties have submitted amended returns already. Answer: Itasca only. Some others have refused or not responded to Secretary of State’s request that they sort rejected absentee ballots.

10:25 a.m.: Magnuson: Do we have authority to make county boards do anything? Swanson: We haven’t found anything that would allow you to do that. Cleary: No reason why the Fifth Pile ballots shouldn’t be submitted. They are uncounted ballots, as determined by election officials. In my opinion they should come to us, they should be opened, and they should be counted.

10:30 a.m.: Magnuson: Agrees wholeheartedly with Cleary. The idea is to count ballots that were properly cast. I would be very surprised if county officials refused to send us amended returns. There are statutory remedies for voters who feel wronged; district courts have power to compel votes to be counted. Until we get an amended return, I don’t believe we can take any action. Gearin: We do not have authority to order county canvassing board to do this. I don’t know why they wouldn’t though. Part of it is, they’ve had a lot of burdens already.

10:35 a.m.: Anderson: I suspect in Pile Five there will be obvious examples of votes that the canvassing board should consider. I’m not troubled by this board recommending that counties look into it. But there are some questions about whether people are duly registered. Those are not facts’ those are allegations. This is not the place to do that fact finding. It’s not only a function of every ballot counting, it’s every lawful ballot. Ritchie: I move we recommend to counties that the county canvassing board review to identify obvious errors and report for review. Cleary: Restating motion. County canvassing board reconvene and separate rejected absentee ballots into five categories. The first four according to legal grounds for rejection. The fifth pile for ballots rejected without reason. Staff asks to include overseas ballots in motion, which is amended.

10:40 a.m.: Magnuson: I’m uncomfortable with us as board whose job is to review even recommending that election officials take certain actions. I’m uncomfortable directing them to do anything. I’m going to vote for the motion but we have no authority to force them to do this. And there is a statutory remedy. Ritchie: I share the general sentiment. It is just a recommendation. Anderson: Debating whether it’s “suggested” or “recommended” is not a useful way to spend a couple hours.

They’re checking over the wording. You would have to be totatlly isolated from any media to not know that the citizens of this state are very frustrated with how long this is taking. I urge both sides to make sure you’re respecting every citizen who went to the trouble to vote, with your challenges. Magnuson: We should call them allegedly wrongfully rejected absentee ballots.

Passes unanimously.

10:45 a.m.: Part two is that board would accept them. Magnuson: It would be premature to act on this until we get them. Cleary: I disagree. Counties are already well underway with their sorting and corrections. Asks Swanson, is it premature? Swanson: What’s important is to make request to counties. Cleary: I would like them to know that we should accept them. Ritchie: County officials wanted to hear from us first. We’ve stated pretty strongly we want the sorting done. Anderson: My view, and it may be excessive caution, I don’t like making a decision I don’t have to make. We’ve made our recommendation, let’s see what transpires.

10:50 a.m.: Magnuson: We have to wait and get the reports. And then we can accept them. Gearin: I can’t think of a reason why we would not accept the amended report regarding these absentee ballots. Ritchie: The longer we talk about this the farther it takes us from a clear message to the counties. Maybe we should change the wording to the motion already passed, adding a few words about sending the results back to the State Canvassing Board.

10:55 a.m.: Magnuson: We’re not in the business of telling them what to do. I think we’re micromanaging at this point. Ritchie: I feel comfortable that we have made a strong recommendation. We look forward to hearing from counties as soon as possible. We are planning to review challenged ballots from the 16th to the 19th. “I’m not happy about this.” — in reference to campaigns dragging their feet at withdrawing challenged ballots.

11:00 a.m.:  Anderson: I don’t think we should assume that there’s just one fifth pile. There may be problems. It’s also possible that we may just approve all of them. Cleary: My concern is that as these amended canvassing reports come in, we’re going to be engaged in a recount. Are we going to stop the recount to debate whether to accept the amended reports? Gearin: Do you really think we’re going to be done by the 19th. Cleary: Meritorious challenges are going to get swamped in a sea of frivolous challenges. Don’t make us tell you when they’re frivolous.

Adjourned.