Coleman v. Ritchie

PAUL H., JUSTICE

(concurring in part and dissenting in part).

It’s not the voting that’s democracy, it’s the counting.

Tom Stoppard, Jumpers (1972) Act I

I agree with the majority that we should direct the parties and local election officials to make every effort possible to agree as to those absentee ballots that were rejected in error in Minnesota’s 2008 race for the United States Senate. But I disagree with the majority’s decision to enjoin county canvassing boards from including, in the absence of such an agreement, any previously rejected absentee ballots in the administrative recount now underway, the effect of which is to bar county canvassing boards from performing their legal duty to determine whether election judges rejected any of such ballots in error. I conclude that the majority’s order is flawed because it misreads Minnesota’s election laws, is internally inconsistent, and has essentially inserted this court into a political thicket based on a premise that lacks a basis under the law. In a democracy, the act of voting and having a validly cast vote accurately counted are inextricably linked. The right to have one’s vote counted is as important as the act of voting itself.

It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote and to ave their votes counted, United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355. In Mosley the Court stated that it is “as equally unquestionable that the right to have one’s vote counted is as open to protection ... as the right to put a ballot in a box.” 238 U.S. at 386, 35 S.Ct. at 905. The right to vote can neither be denied outright, nor destroyed by alteration of ballots, nor diluted by ballot-box stuffing. As the Court stated in Classic, “Obviously in-*312eluded within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted.... The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”

Reynolds v. Sims, 377 U.S. 533, 554-55, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (citations omitted).

Our review in this case “must be informed by the recognition that ‘[n]o right is more precious in a free country than having a voice in the election of those who make the laws under which as good citizens we must live’ ” and that “[ojther rights, even the most basic, are illusory if the right to vote is undermined,” Erlandson v. Kiffmeyer, 659 N.W.2d 724, 729 (Minn.2003) (quoting Burson v. Freeman, 504 U.S. 191, 199, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992)). We have said that in order to protect this precious right election laws should be liberally construed. In Quealy v. Warweg, in reference to an election law, we said that “[tjhe statute must be liberally construed so as to effectuate legislative intention and to fully secure to the people their right to express their choice.” 106 Minn. 145, 146, 118 N.W. 673, 118 N.W. 673, 673 (1908); see also Petersen v. Holm, 243 Minn. 38, 40, 66 N.W.2d 15, 16 (1954). “A technical construction of the language used would be objectionable on general principles, and tend to subvert the purposes sought to be attained.” Dougherty v. Holm, 232 Minn. 68, 71-72, 44 N.W.2d 83, 85 (1950); Quealy, 106 Minn. at 146, 118 N.W. 673. My full dissent will accompany the court’s full opinion in this matter. I write separately at this stage to emphasize that the court’s decision today is inconsistent with the foregoing fundamental principles that we have said apply to voting and the counting of votes.

The court’s order is based on a very narrow definition of the phrase “obvious error in the counting or recording of the votes for an office” as used in Minn.Stat. §§ 204C.38 and .39 (2006). Under the majority’s definition, a canvassing board can do nothing more than correct arithmetic errors in the vote totals. But I conclude that under these statutes, an error in rejecting an absentee ballot, i.e., an obviously erroneous exclusion of such ballot from the total number of ballots counted on election night, must necessarily be within the meaning of this phrase. Moreover, as Justice Page points out in his dissent, given that this phrase is used in both sections 204C.38 and .39, it is logically inconsistent to permit ballots to be counted under 204C.38 while prohibiting ballots from being counted under 204C.39.

The majority’s narrow construction of the county canvassing board’s authority to correct the mistakes of election judges is also inconsistent with the duties of the county canvassing board under Minn.Stat. § 204C.33, subd. 1 (2006). Under that statute, the county canvassing board meets after the general election to “canvass the general election returns delivered to the county auditor.” Minnesota Statutes § 204C.27 (2006) defines what is “returned” to the county auditor following a general election, and it is not limited to the ballots actually “counted” on election night. The county canvassing board is therefore to canvass not just the ballots actually counted on election night, but all ballots returned to the county auditor. The county canvassing board then pre*313pares a report that states, not those votes actually counted on election night but “the number of votes received by each candidate,” which need not be the same thing. And, as we ruled in Andersen v. Donovan, 264 Minn. 257, 267, 119 N.W.2d 1, 8 (1962), if a county canvassing board can correct errors in its initial canvass, it should be able to correct those same errors even after the initial canvass is completed.

Not only is a narrow construction of “obvious error” contrary to statute, but it is contrary to our long-standing precedent and to the principles on which that precedent is based. In Andersen, we observed that to hold that the results of that election “must be based on the return that everyone concedes is erroneous would be a perversion of our whole election process in the pursuit of strict adherence to statutes that need not be so strictly construed.” 264 Minn. at 269, 119 N.W.2d at 9. Yet, the majority’s construction of “obvious error” does exactly that: allow election returns that no one can reasonably agree reflect all validly cast ballots to stand unless the disenfranchised voters petition the courts for redress.

At this point, it is appropriate to give an example of an obvious error in counting and recording absentee ballots that can, and should, be addressed by a county canvassing board before the State Canvassing Board certifies a winner in the Senate election. Two voters, residing at the same address in a metro area suburb, cast absentee ballots in the November 4 election, but their ballots were rejected by election judges. The reason given for the rejection is listed as code number “3.” Code number 3 is described under the “Reason Code Description” as being: “The voter was not registered and eligible to vote in the precinct or has not included a properly completed voter registration application.” This reason for rejection tracks Minn.Stat. § 203B.12, subd. 2(3) (2006), which provides that for an absentee ballot to be marked “Accepted” election judges must be satisfied that “the voter is registered and eligible to vote in the precinct or has included a properly completed voter registration application in the return envelope.” Thus it appears from intrinsic evidence that the two voters’ absentee ballots were rejected because the voters were not registered to vote.

Yet there is evidence, intrinsic to the electoral system, that the absentee ballots of these two voters were improperly rejected and their votes therefore were not counted. The Secretary of State’s voter identification record shows that both are not only registered voters but diligent voters. One has voted in every primary and general election since 1994, as well as a special election and a school board election.1 The other has voted in all general *314elections since 1994, all but two primary elections since that date, and several local elections.2 In all of these elections, both voted in person and most recently in the primary election held on September 9, 2008.

Nevertheless, the ballots of these two voters were rejected and not counted. Based on the foregoing information, the election judges’ rejection of these ballots can only be described as the result of an “obvious error in counting or recording.” Not only were their votes not counted for the Senate race, but also they were not counted for any other race for which their votes were validly cast. I believe that these voters, who have in the past been conscientious and diligent in exercising their enfranchised right, would be both surprised and chagrined to know that their votes have not been counted due to obvious human error. Further, their trust and confidence in our voting system may well be significantly undermined once they learn that, as a result of an obvious error, their absentee ballots were not only rejected but that, once the error was discovered, Minnesota law as interpreted by the majority does not allow the county canvassing board to simply correct the error.3

The foregoing example points out a further problem with the court’s order. In Andersen we observed that the purpose of the predecessor of Minn.Stat. § 204C.39 “obviously was to permit correction at the county level of obvious errors committed by the precinct judges in order to avoid the necessity of an election contest where possible.” Andersen, 264 Minn. at 262, 119 N.W.2d at 5 (citing Minn.Stat. *315§ 204.30 (1961)). I conclude that under the statutory scheme in place, it does not and should not fall to the courts of this state to correct errors that other branches of government acknowledge.

I have three summary observations. First, I am perplexed by the petitioners’ position that county canvassing boards do not have the ability to review and correct obvious errors in the counting and recording of absentee ballots. Under Minnesota’s election system, county canvassing boards are given considerable authority and discretion to fulfill their duty to accurately count votes cast in an election. As indicated above, I conclude that Minnesota’s statutory scheme allows county canvassing boards to correct obvious errors before the State Canvassing Board certifies a winner in any given election. I do not understand why petitioners are so reluctant to have this statutory scheme take its normal course so that the county canvassing boards can count absentee ballots that have undisputedly been rejected improperly. This process allows the State Canvassing Board to reach a result without excluding ballots that are undisputedly valid.

Second, I am concerned by what I see as an inconsistency in the majority’s opinion, which narrowly construes the term “counting and recording errors,” thus limiting the ability of county canvassing boards to deal with anything other than arithmetic errors but nevertheless directs the parties to make every attempt to agree unanimously as to what errors in counting and recording have been made in counting absentee ballots. I appreciate the majority’s attempt to see that some of the improperly rejected absentee ballots are counted. But the remedy it has provided was not requested by the parties, and I am not sure can be properly ordered by the court under Minn. Stat § 204B.44 (2006). Moreover, the inquiry ordered by the court and the process that this inquiry involves obviously extends beyond the majority’s interpretation of what a county canvassing board is legally authorized to do. As Justice Page points out, the majority has essentially issued a directive that cannot be fulfilled by county canvassing boards in light of the majority’s narrow interpretation of the phrase “counting and recording.”

Finally, I note that, although I disagree with the majority’s order issued today, it is important to keep in mind that this order is a result of a preliminary skirmish in what appears to be an extended legal contest regarding Minnesota’s 2008 Senate election. Winston Churchill is reputed to have once said, in an admiring tone, that Americans ultimately do the right thing after they have exhausted all the other alternatives. Sometimes, the wheels of justice and due process take time to fully turn. While I believe that we have incorrectly exhausted one alternative today, I have complete confidence that ultimately the right thing will be done and all validly cast absentee ballots will be properly counted.

I respectfully concur in part and dissent in part.

. Voting record of first voter:

ELECTION DATE ELECTION DESCRIPTION

09/14/2004 STATE PRIMARY

11/06/2001 SCHOOL DISTRICT ELECTION

11/05/2002 STATE GENERAL ELECTION

09/10/2002 STATE PRIMARY

11/02/2004 STATE GENERAL

09/12/2000 STATE PRIMARY ELECTION

11/07/2000 STATE GENERAL

09/15/1998 STATE PRIMARY ELECTION

11/03/1998 STATE GENERAL

09/10/1996 STATE PRIMARY ELECTION

11/05/1996 STATE GENERAL

*31411/07/1995 SCHOOL BOARD ELECTION

09/13/1994 STATE PRIMARY ELECTION

11/08/1994 STATE GENERAL

07/13/1993 SPECIAL ELECTION

11/04/2003 GENERAL ELECTION

09/12/2006 STATE PRIMARY

11/07/2006 STATE GENERAL

09/09/2008 STATE PRIMARY

. Voting record of second voter: