In that election, the initial report to the State Canvassing Board showed that Sparks had won the election by 33 votes. An automatic recount followed. During the course of the recount, we learned that late on election night an election judge removed 17 absentee ballots cast for the late DFL Sen. Paul Wellstone from the Austin City Hall. The election judge brought the ballots home and burned them in her fireplace. She explained that she was unable to reconcile the vote totals in the U.S. Senate race due to the changed election procedures after Wellstone’s death, a tragic event that required a new ballot for the race between Norm Coleman and Walter Mondale.
In the course of that recount, both Schwab and Sparks gained votes overall. Sparks gained votes in seven of the eight precincts in Austin, losing votes only in Ward 2, Precinct 1, where the Wellstone absentee ballots had been destroyed. Schwab gained votes in every precinct, including the one from which the 17 ballots were removed.
When this matter was brought before the Canvassing Board along with 32 other challenged ballots, the board ruled that Sparks won the election by three votes and credited to him eight additional votes that were shown on the printed tape from the voting machine in Ward 2, Precinct 1. The Canvassing Board then declared Sparks the winner by 11 votes.
At trial in Mower County, Judge Quinn upheld all 15 challenges that I made on behalf of candidate Sparks and upheld 12 of 17 challenges made by Knaak on behalf of Schwab. At the same time, Quinn ruled that he was only going to count what he could see in Ward 2, Precinct 1. He awarded each candidate the number of remaining existing ballots from that precinct, but he did not include any totals from the burned ballots that were tabulated on election night.
At the conclusion of the trial, Quinn found that Sparks won the election by five votes. No appeal of the decision was taken. Why? While I vehemently disagreed with Quinn’s ruling regarding the 17 missing ballots then, and still do today, there was no reason for Sparks to appeal. Quinn had rightly declared him the winner. Schwab’s attorney did not appeal the decision, either. While I don’t know what was in the minds of those advising the Schwab campaign, I believe they concluded that no matter how the ballots were counted, she could not win, and that under any set of circumstances, Sparks won by 33, 11 or five votes.
I agree entirely that Quinn reached the correct result in the 2002 recount. But I completely disagree with his suggestion that the "count only what you can see" method should apply in this year’s U.S. Senate race. The facts involving the Third Ward, First Precinct in Minneapolis (the so-called 133 missing ballots) do not present the same situation as the Sparks recount and election contest. The manual recount in the Minneapolis precinct revealed that both Franken and Coleman lost votes. A review of the number of voters who signed in on election day or submitted absentee ballots shows that there were at least 133 people who legally received a ballot whose votes were not counted. There is no dispute that voters’ ballots are gone.
Quinn claims that there is little precedent for situations like this. He is wrong. There has been a long tradition in Minnesota law dating back to 1882 involving at least half a dozen legal cases that make it clear that when ballots are missing, the courts will rely on the report that existed on the night of the election, when all the ballots were present. This principle is derived from the so-called "best evidence" rule. When facts are clear, as they are in this year’s U.S. Senate race and as they were six years ago in the District 27 race, the courts in this state and throughout the nation have ruled that judges should rely on the evidence produced when all of the ballots were available and could be counted. To do otherwise would take the constitutionally guaranteed right to vote away from citizens because an election judge or some other person has screwed up.
So while Quinn’s "keep it simple" approach may have a certain elemental appeal, the far better practice is to use the best evidence and ensure that all Minnesota voters who went through the effort to participate in the election are enfranchised.
The 17 voters in Austin whose ballots were burned by an election judge had their voices silenced in 2002. Fortunately, that did not ultimately affect the result of the election. The real tragedy that could now occur would be that the 133 voters in Minneapolis whose votes will most likely decide this election will be disenfranchised. The Canvassing Board was right last week to include these 133 votes as they existed on election night. No canvassing board, court or elected body should see those voters’ voices taken away.
Two days after the election, after reviewing the precinct results from around the state, I told several friends and colleagues that I believed Al Franken would win the recount by 40 to 50 votes. As this recount has unfolded and as the initial canvasses have proceeded, I have become convinced that my prediction is more correct than ever. It is absolutely imperative that every voter’s voice is heard and that those 133 votes be included in this recount.Brian F. Rice is a Minneapolis attorney.