Editorial: Courts should rule on rejected ballots

"Count them all" has a nice democratic ring to it. (Note: that's a small "d.") DFL Senate candidate Al Franken's campaign has that much going for it, as it calls for adding several thousand previously rejected absentee ballots to the Senate election recount that has been in progress since Nov. 19.

But that shouldn't be enough for the state Canvassing Board, which is set to meet Wednesday for a hearing on Franken's request. Adding previously untallied ballots to the recount should require something more: a foundation in law.

What the Franken campaign proposes boils down to one of two things: It asks either for a decision to overlook or overturn a portion of the state's absentee ballot statute, or for a finding that some county elections officials incorrectly applied that law.

In this country, courts can rule that laws are unconstitutional and can be disregarded. Courts can find that laws were not obeyed, and order a remedy.

But a canvassing board -- even one whose members include four judges, as Minnesota's does -- is not a court. Its role is administrative. Its task is to oversee a by-hand recount of ballots "validly cast." That phrase is set in statute, and is followed by another, just as pertinent: "Only the ballots cast in the election ... may be considered in the recount process."

The 2008 Recount Guide prepared by the office of Secretary of State Mark Ritchie was even more specific: "This is an administrative recount. ... It is not to determine if absentee ballots were properly accepted."

This state is blessed with election laws that are definitive and clear. The chapter on absentee ballots alone runs 20 pages in the statute books. The rules setting out what does and does not constitute an acceptable absentee ballot are taken very seriously by election judges. That does not mean that human error did not occur on Nov. 4, or that every aspect of the statute itself would withstand a court test. But let the courts decide.

The spotlight Franken's campaign has shone on absentee ballot rejection has value that goes beyond determining who will represent Minnesota in the U.S. Senate. With an increasing share of Minnesotans voting by mail or in person before Election Day -- and with more elections by mail under consideration -- the risk of absentee ballot rejection ought to be better understood.

The law says that an absentee ballot is accepted if it meets five tests: The name and address on the return envelope must match that on the absentee ballot application. The voter's signature must match that on the application (with some exceptions carefully specified). A required certificate must be completed. The voter must be either previously registered, or must include a voter registration card with the ballot. And the voter may not have cast a ballot in person at the polls.