A nasty bug emerges in the state election system

Before the 2000 presidential election, no one had ever heard of hanging chads. Before this year's U.S. Senate race in Minnesota, rejected absentee ballots were almost as little known.

Now, they've emerged as the biggest flaw in Minnesota's election system and may hold the key to finally resolving the contest between Republican Sen. Norm Coleman and DFLer Al Franken.

But here and nationwide, the rejection of absentee ballots -- either because voters improperly filled out documents or because election officials erroneously spiked them -- is a problem that's long been hiding in plain sight.

"For years, people know some part of the [elections] system isn't working, but it flies under the radar screen because it doesn't cause problems until you have a situation like Florida in 2000 or Minnesota now," said Edward Foley, an election law expert at Ohio State University's law school. "Suddenly, it becomes a huge problem. Rejected absentee ballots are the new hanging chad."

"Boy, is that true," said Minnesota Deputy Secretary of State Jim Gelbmann, who has estimated that more than 13 percent of rejected absentee ballots in the Senate race -- possibly as many as 1,580 -- were improperly set aside.

"I would guess 13 percent is probably about normal for an election, but we have no way of knowing," having never examined those ballots in a previous election, he said.

The spotlight on the recount has illuminated the difficulties of voting absentee.

"I do feel disenfranchised but not to the point where I have lost faith," Tjossem wrote in an e-mail. "I believe that the mistakes that are made will essentially balance each other out. I also believe that with the technology that is available, there has to be a better way of voting."

Increased absentee ballots

About 290,000 Minnesota voters -- one in 10 -- voted absentee this year, far more than ever before. An estimated 12,000 of their ballots were rejected.

On Friday, the state Canvassing Board took up the issue of rejected absentee ballots and sent it back to Minnesota's 87 counties, asking them to sort in a separate pile those that may have been improperly set aside.

To prevent fraud, absentee voters are required to document their identity and eligibility to vote, but the cumbersome nature of the process has led to repeated failed attempts to make it easier.

Growe and other good-government advocates have repeatedly tried to simplify the absentee process, or even transform it into a true early voting system, but the idea has never gotten much traction in the Legislature because there was little incentive to fix a system that didn't appear to be broken.

State Sen. Kathy Sheran, DFL-Mankato, shepherded a bill last year that would have eliminated the requirement that voters state a reason for voting absentee and dropped the need for a witness. It became part of a larger omnibus bill that Gov. Tim Pawlenty vetoed.

Had that bill become law, it might have somewhat reduced the pile of ballots that elections officials rejected, Sheran said. "I was just doing what I could to make access to absentee voting more accessible," she said. "I never had anything like this in mind, where everything is teetering on these absentee ballots."

Dealing with rejected ballots

When state elections officials realized that rejected absentee ballots could be crucial to resolving the Senate race, they instructed their local counterparts to separate the ballots into five piles: four for those rejected for each of four reasons specified by state law, and a fifth pile for ballots set aside for other, apparently improper, reasons.

Nationally, statistics from the Federal Election Commission show that 2.5 percent of all absentee ballots were rejected in 2004 and 2006.

At a national conference on election reform held in Washington, D.C., last week, Foley said, "Minnesota's struggles with absentee ballots came up as a question about the electorate that's getting less attention than it deserves. Until now, it's been a topic that has been understudied and underanalyzed."

At the very least, the voting public perceives it to be a problem. A survey released last week by the Pew Center for the States found that while 75 percent of people who voted on Election Day said they were confident their ballots were counted correctly, only 61 percent of absentee voters expressed such confidence.

That unease coexists with a national trend toward opening up the voting process: Thirty-one states offer early voting and 28 offer absentee voting that doesn't require a reason.

Many of the complicated, sometimes arcane, instructions for absentee voting in many states date from a generation ago "when it was really more the exception than it is today," Foley said. "There was a fear of shenanigans. But the psychology has changed completely and the laws haven't kept up with that."

Growe said the more restrictive nature of Minnesota's absentee voting laws "is making liars out of Minnesotans, who want to vote early but don't have a valid excuse. We could make it much simpler."