By Al Edenloff and Don Davis
Republicans think a judge’s Tuesday decision gives them an advantage to winning a tight Minnesota legislative election headed to a recount.
A Douglas County judge approved a request by Rep. Marry Franson, R-Alexandria, to randomly remove 35 ballots before the recount to fix Election Day mistakes.
House Minority Leader-elect Kurt Daudt, R-Crown, said the ballots to be removed come from precincts in which Democrat Bob Cunniff did well, which means chances are that he could lose votes.
After Election Day, freshman lawmaker Franson led by a single vote in unofficial returns. The ballots are to be removed Wednesday and the State Canvassing Board is to convene next week and order a recount if the winning margin remains within a half percentage point.
Judge David Battey’s order, coming hours after a hearing on the case, said there were errors in the election and state law requires the removal of ballots.
“While the remedy in this situation may not be the ideal solution to the problem, the court notes that it has limited options,” Battey wrote.
When Douglas County election officials examined returns last week to prepare for a recount, they found that 32 voters in two Alexandria wards were given ballots that allowed them to vote in the Franson-Cunniff race when they were supposed to be voting in the neighboring House District 12B race. In addition, in another ward there were three more ballots cast than signatures on the voting roster.
Franson petitioned the court to order that 35 ballots be removed at random. She asked, and Battey granted, that ballots be removed from specific precincts.
Franson and her attorney, Reid LeBeau, requested the court to get involved because they believe the Douglas County Canvassing Board lacked authority to correct the errors.
“Simply put, there were more votes than voters in three precincts in the city of Alexandria,” LeBeau said.
Cunniff, however, said state law does not apply to the Douglas County situation. His paperwork filed with the court says that votes should not be taken away “simply because an election judge mistakenly provides a voter with the wrong ballot.”
The Democrat sought another remedy that would be determined by a contested election board, perhaps taking actions such as inspecting the ballots, conducting a new election in the affected wards and examining the absentee ballots.
“It’s not appropriate to randomly draw from both valid and invalid ballots,” Cunniff attorney David Zoll told Battey.
When asked for Douglas County’s insights into the matter, County Attorney Chad Larson told Battey that upon discovering the errors, the county’s goal has been to make the remedy process transparent and open to the public.
Rather than certifying the results or randomly throwing out ballots to reconcile the over-votes as outlined in state law, the county wanted to bring the matter before a judge where both candidates could state their case, Larson said.
Daudt said the law is plain.
“The law is pretty clear and obviously there was an overvote in this area,” Daudt said. “There were more ballots in the ballot box than there were voters.”