(dissenting).1
Josef Stalin is alleged to have once said, “I consider it completely unimportant who ... will vote, or how; but what is extraordinarily important is this — who will count the votes, and how.”
Today the court gives credence to that proposition by preventing at least some number of validly cast votes from being included in the final canvass of the election for Minnesota’s United States Senate seat currently held by Senator Norm Coleman. As a result, these Minnesota citizens who cast their votes for Senator Coleman and Al Franken, as well as in other election contests on the ballot, will be disenfranchised. Therefore, I respectfully dissent.
By its order, the court holds that canvassing boards do not have authority under Minn. Stat. §§ 204C.38 and .39 (2008) to correct obvious errors in the improper rejection of validly cast absentee ballots. The court holds that the decision to reject and not count validly cast absentee ballots does not fall under the plain language of “counting or recording.” I disagree with that narrow and contrived interpretation.
Notwithstanding that holding, the court orders the candidates and local election officials to review the rejected absentee ballots and determine which of those ballots were rejected in error. For ballots which they all agree were rejected in error, the court orders that those ballots be opened and counted. In effect, the court is deciding that though the legislature designated the procedures in section 204C.38 for “obvious errors in the counting or recording of the votes,” the same procedures can also be used for other errors, as long as the candidates are all in agreement. The court, with one hand, takes away the canvassing boards’ authority to apply the procedures of section 204C.38 to improperly rejected ballots, while with the other hand, orders the boards to do exactly what it just took away, without giving any concern to legislating from the bench.
In addition, section 204C.39 provides a procedure to correct “obvious errors in counting or recording the votes” when the candidates are not in agreement. There is no legitimate rationale as to why the pro*310cedures in section 204C.38 are acceptable, but not the procedures in section 204C.39, for correcting improperly rejected absentee ballots. Instead, the court relies on its authority under Minn.Stat. § 204B.44 (2008) to ensure that its order does not seem inconsistent.
But “foolish consistency is the hobgoblin of little minds,” and therein lies the rub. The court’s ruling denies county canvassing boards which have reached the decision — that an absentee ballot was rejected in obvious error — the ability to correct those errors unless the candidates agree. The court’s order may seek the peaceful way out by asking the campaigns to agree on improperly rejected ballots. But the order does not guarantee that the candidates and their political parties will agree on any rejected ballot. Instead, the court’s order will arbitrarily disqualify enfranchised voters on the whim of the candidates and political parties without the benefit of the legislatively authorized procedures in section 204C.39.
It is a perverse result, indeed, for political parties and their candidates to determine whether a voter’s absentee ballot was properly or improperly rejected. By making the acceptance of an improperly rejected ballot contingent on the candidates’ agreement, the court has abdicated its role as the defender of the fundamental right to vote. Instead, it has made the candidates and their parties the gatekeepers— even though they are likely to be more concerned with their own election prospects than with protecting the absentee voter’s right to vote.
Further, the court’s order pays lip service — but only that — to the principle that all valid votes are to be counted, including those of absentee voters. We stated in Erlandson v. Kiffmeyer, 659 N.W.2d 724, 734 (Minn.2003), that “[t]he purpose of the absentee ballot is to enfranchise those voters who cannot vote in person.” Because the requirements for absentee voting are quite stringent, we have tried to avoid disenfranchising “the very people the absentee voter laws are intended to benefit.” Id. Today’s order burdens the absentee voter’s fundamental right to vote.
Those whose absentee ballots do not fall into one of the four categories for rejecting absentee ballots under Minn.Stat. § 203B.12 (2008) have, to this point, done everything the state has asked of them: they have requested absentee ballots; they have filled them out completely and correctly; and they have timely returned them to the proper authorities — all with the expectation that the government will then do its part and count their vote. But the court’s order places the burden on the voter whose absentee ballot has been wrongly rejected to correct the election officials’ error. First, it is unclear that a voter will be given timely notification that his or her vote has been rejected. Assuming that the voter discovers the improper rejection, the voter has three options. The voter can ask both candidates to agree that his or her vote was improperly rejected and should be counted. Failing that, the voter can file a petition under Minn. Stat. § 204B .44(d) (2008) with a judge of this court seeking to correct an error by any election judge or canvassing board. In that situation, the voter must file the petition and serve copies of the petition on the individual charged with the wrongful act. Finally, the voter may also file an election contest under the procedures listed in Minn.Stat. ch. 209 (2008). But chapter 209 is costly and burdensome. Most importantly, the scope of an election contest under chapter 209 is primarily concerned with which party received the highest number of votes, not the protection of the fundamental right to vote. Minn.Stat. § 209.12 (2008). Construing sections *311204C.38 and .39 to impose such burdens on the absentee voter is irreconcilable with the principle of counting each valid vote cast.
Moreover, the court’s order creates the very equal protection problem that the Petitioners contend will arise in the absence of the relief it sought. By treating valid and legally cast absentee ballots differently, depending on whether the candidates and local election officials agree that they were improperly rejected, the court allows a distinction that can only be described as arbitrary.
Finally, the court’s order threatens sanctions against the attorneys for the two campaigns and their clients in a future legal proceeding if the attorneys or their respective clients unreasonably refuse to agree that particular absentee ballots were improperly rejected. But the clients, here, have no obligation to agree, whether reasonable or not. It does not appear to me that counsel for either campaign is in a position to control the outcome of that process, and I question our authority to sanction the attorneys or their clients for a decision that the attorneys’ clients have every legal right to make.
The record before us indicates that at least 600 absentee ballots were improperly rejected. Under the court’s order, those votes may never be counted, not because of anything that either the voters or their elected officials have or have not done, but simply because this court gives the narrowest possible reading to the language “obvious error in the counting and recording of the vote” and ignores Minn.Stat. § 204C.35 (2008), which requires the canvassing boards to determine “the number of votes validly cast for the office to be recounted.” The court’s order will allow these voters to be disenfranchised without my vote.
. I join the dissent of Justice Paul H. Anderson and my full dissent will accompany the court’s full opinion. I write separately at this stage to make a number of points.