Posted: December 19, 2008

Minnesota Supreme Court order on absentee ballots - brief analysis

The Supreme Court issued a 3-2 decision requiring election officials and both campaigns to agree on a uniform counting standard and allowing only those absentee ballots that both candidates agree were improperly rejected based on the agreed-upon standard to be counted and included in the recount. Presumably, those absentee ballots whose validity the campaigns cannot agree on would be the subject of one or more election contests. Minnesota law explicitly provides for correction of obvious errors by county officials where the two candidates agree in writing to the correction. See 204C.38. However, the Court found that 204C.38 and 204C.39, both sections on correction of obvious errors, did not apply. Rather, its decision was based on 204B.44 which allows any individual to petition the Supreme Court to order counties to correct any wrongful act, omission, or error (or show cause for not doing so) by an election official in a state or federal election. See the Supreme Court’s order here on our Coleman v. Ritchie case page. Two justices wrote in dissent. Justice Page’s dissent alleges that the majority’s decision will create the kind of equal protection problem it seeks to avoid by treating valid, legally cast ballots differently based on the arbitrary agreement of candidates and officials. It should be noted that 204B.44 does not require this particular manner of relief. The statute directs the court to order “appropriate relief”.