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A Note on Reconcilation in Minnesota

In a news conference this morning, Republican gubernatorial candidate Tom Emmer made clear that he is not conceding the race to his opponent Mark Dayton (who leads by approximately 9000 ballots) unless and until Emmer is satisfied on the issue of reconciliation.

What exactly is reconciliation and why is Emmer presently unsatisfied?

Reconciliation is the process by which election officials match the number of voters who cast ballots with the number of ballots cast. In Minnesota, as in some other states, if when preparing to make their initial count of the ballots, local officials find that there are more ballots cast than the number of voters who cast them, these officials are supposed to perform a procedure known as “random withdrawal”: literally, an official is supposed to reach into the ballot box, without looking specifically, and pull out the number of excess ballots.  [In Minnesota, this process occurs on Election Night at the precincts.]

Minnesota’s statute is clear about this requirement: section 204C.20, subdivision 2 (entitled “excess ballots”) details several steps that must occur in the reconciliation process. First, the officials see if any excess ballots were not properly authenticated in advance. If so, these specific ballots are removed and not counted. (If there is no excess to begin with, then these ballots not properly authenticated may still be counted.) After this step is complete: “If there is still an excess of properly [authenticated] ballots, the election judges shall replace them in the box, and one election judge, without looking, shall withdraw from the box a number of ballots equal to the excess. The withdrawn ballots shall not be counted.”

In Minnesota this year, the fight over reconciliation has focused on so far the exact procedures used to conduct the reconciliation process.  The debate has been whether it is permissible to count the number of receipts that voters receive before casting their ballots, as specified by administrative regulation, or instead the process must be confined to what the statute terms as either “the number of signed voter’s certificates” or “the number of names entered in the election register.”  This post, however, focuses not on that issue, but instead on the potential issue of random withdrawal itself.  The inquiry here is whether any failure to perform random withdrawal, after it is settled what counting method is appropriate for reconciliation, could be the basis for litigation over the outcome of an election.  It is an issue that I have explored in previous scholarship.  See Edward B. Foley, The Analysis and Mitigation of Electoral Errors: Theory, Practice, Policy 350, 365-369 (2007).

It is likely that compliance or noncompliance with random withdrawal will fizzle out as a practical matter in connection with this year's governor's election in Minnesota.  That's because, as discussed further at the end of this post, it is extraordinarily unlikely that the number of ballots that should have been withdrawn but were not would be anywhere near enough to make a difference in this race.  Still, absent seeing the actual final evidence on what those numbers are, and thinking about what might happen if Minnesota pulls a trifecta and has another statewide election in 2012 that is close enough to fight about (or if a similar issue should arise in another state), it is worth exploring what might happen if noncompliance with random withdrawal conceivably might have made a difference in a close election. 

Allegedly, in this year’s election, some local officials in Minnesota did not perform the random withdrawal procedure, as required by statute. In the past, there has been an indication emerging from research into election administration practices that some officials philosophically don’t like this requirement; they view it as antiquated and contrary to the interests of the voters they serve. These officials believe that they can be confident in the legitimacy of the excess ballots cast even if they cannot be completely reconciled with corresponding evidence of the voter who cast the ballot.  One hears of poll workers saying something along the lines of, “Well, I know Jane Smith voted because she’s a neighbor and I saw her cast her ballot, so even if she did not sign the register and it appears that we are short one voter, we shouldn’t randomly draw one ballot from our precinct, because the extra ballot must be Jane’s.” [Indeed, one local election official was quoted in the Pioneer Press: "You have to remember that I'm in outstate Minnesota where we all know each other. . . .  The wife signs and the husband doesn't and off they go."]  One can be sympathetic with the position of the poll worker in this situation, but failure to perform random withdrawal when there remains a discrepancy between the number of ballots and the statutorily acceptable evidence of number of voters does not strictly comply with the requirements of Minnesota’s statutory law.

Minnesotans, of course, have heard this kind of thing before—recently, in the context of their disputed 2008 U.S. Senate election. Back then, the issue was the rules for submitting absentee ballots. It turned out that some election officials liked to be lenient in the enforcement of those rules as well, for the benefit of the voter. Some voters would fail to fill out their absentee ballot envelopes properly, but the officials would still count them if they were confident that the voters and their ballots were valid anyway. In the litigation over the outcome of the Senate race, the courts took a dim view of this administrative leniency: the statutory rule must be strictly followed whether the local officials like it or not. Something similar may happen with respect to the random withdrawal issue this year.

The leading case in Minnesota on the obligation to follow the random withdrawal statute properly is Johnson v. Trnka, 277 Minn. 468, 154 N.W.2d 185 (1967). There, the trial court mistakenly performed the random withdrawal procedure without first removing ballots that were not properly authenticated. Because there were more of these ballots (6) than the excess over the number of voters (2), removing these ballots eliminated the excess and there was no longer a warrant for random withdrawal. The Minnesota Supreme Court, accordingly, reversed.

Earlier in the current fight over the governor’s election, Emmer’s side asked the Minnesota Supreme Court to mandate compliance with the random withdrawal procedure before beginning the mandatory statewide administrative recount of all initially counted ballots. The high court declined to do this, but has not yet stated its reasons. In his press conference, Emmer said he is waiting for the court’s opinion before deciding to make his next move on the reconciliation issue.

The Johnson precedent, because its particular facts involved a different problem, does not specifically say what happens if (after discounting ballots that were not properly authenticated), there still remains an excess number of ballots relative to the number of voters, but the local officials did not perform random withdrawal. In a post-recount judicial contest of a certified gubernatorial election, may the losing candidate demand that the court order the statutorily required random withdrawal? The tenor of the Johnson opinion, indicating that the statute should be followed properly, suggests maybe so. But it is hardly a foreordained conclusion.

For one thing, the judicial precedent in other states is that random withdrawal will not be ordered subsequently in a contest of an election if local election officials can offer good reasons for not conducting the procedure. For example, in Minnesota’s neighbor Wisconsin, that state’s supreme court has held an excess ballot, even if not properly authenticated, should not be removed from the count unless there is separate evidence that it was cast by an unqualified voter. Ollmann v. Kowalewski, 238 Wis. 574, 300 N.W. 183 (1941). That court stated: “It is more likely that the election clerks made a mistake in checking someone who voted . . . . The ballot expressed the will of the person who voted it. To reject it without proof of illegality or fault on his part would disfranchise the voter.” This Wisconsin approach is the opposite of the strict compliance standard embraced by the Minnesotsa Supreme Court in the Coleman v. Franken litigation. But Minnesota’s high court there made a point of saying that the strict compliance standard for absentee voting rules did not necessarily apply to in-precinct voting rules, for which Minnesota apparently adopts a more lenient posture. Thus, the choice between strict and lenient enforcement of the specific random withdrawal rule potentially at issue in this year’s gubernatorial election still seems an open question under the state’s judicial precedents.

Finally, there remains the all-important question of numbers. Assuming that Dayton’s certified victory at the end of the recount is 9000 (to use a round number), presumably Emmer would need to show at least 9001 excess ballots statewide in order to even begin to engage the court with the question of whether to order any random withdrawal that should have occurred but didn’t. Even assuming that Emmer could show a much larger lack of reconciliation—say, 90,000 excess ballots statewide, to jump an order of magnitude above Dayton’s margin of victory—it would seems extraordinarily improbable that performing random withdrawal would overturn that victory. I’m no statistician but my understanding is that those who are would calculate the odds as infinitesimal that randomly removing 90,000 ballots from a certified count of 2.1 million ballots would erase a 9000-vote margin. In this circumstance, then, it is quite possible that the Minnesota judiciary would not put the state’s election officials to the time and expense of performing the random withdrawal procedure where there is no reasonable possibility of changing the outcome of the election.

Still, assuming that random withdrawal did not occur this year in Minnesota as required--an allegation that (as far as I can tell) has not yet been definitely established--one wonders whether it would have been possible to avoid any of these legal issues on what if anything to do to remedy such a shortcoming.  Perhaps if the election officials had just performed random withdrawal as required by the statute, rather than attempting to improve on the administration of the electoral process according to their own lights (assuming for the moment that any such behavior occurred in Minnesota this year), any potential legal issue regarding compliance with the random withdrawal rule could have been avoided. If the statute on random withdrawal needs to be reformed, that is a task for the legislature to take up. Just as with updating antiquated rules for absentee voting, problems emerge if local officials deviate from the existing rules on their own, rather than getting the rules fixed for everyone statewide.

[Updated December 5, 2010]

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

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