It's not the voting that's democracy, it's the counting.
Tom Stoppard, Jumpers (1972) act I.
I respectfully dissent. I disagree with the majority's decision to enjoin county canvassing boards from including any previously rejected absentee ballots in the administrative recount. I appreciate the majority's efforts to see that the results of the election reflect "the true vote of the people." We all share the goal that the results of this election be accurate. But the majority's decision to bar county canvassing boards from performing their legal duties — including determining whether the election judges erroneously rejected ballots on election night — does little to achieve an accurate count of validly cast votes. I conclude that the majority opinion misreads Minnesota's election laws, is internally inconsistent, and improperly gives the candidates significant control over a citizen's fundamental right to have his or her validly cast vote counted. *Page 234
In a democracy, the right to have one's validly cast vote counted is as important as the act of voting itself.
Reynolds v. Sims, 377 U.S. 533, 554-55, 84 S.Ct. 1362,12 L.Ed.2d 506 (1964) (citations omitted) (footnote omitted).It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote and to have 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. 904]. 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 [U.S. v.]Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)] "Obviously included 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.
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 "[o]ther 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 long held that in order to protect this fundamental right, election laws should be liberally construed. In Quealy v.Warweg, in reference to an election law, we said that "[t]he 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, 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 (Minn. 1950); Quealy, 106 Minn, at 146,118 N.W. at 673. The majority's decision today is inconsistent with these general principles.
The majority concludes that the erroneous rejection of an absentee ballot return envelope is not an error in "the counting or recording of the votes for an office" and therefore cannot be corrected under Minn. Stat. § 204C.39 (2008). The majority further concludes that, even if the erroneous rejection of an absentee ballot return envelope is an error in "the counting or recording of the votes for an office," section 204C.39 does not authorize a county canvassing board to unilaterally amend its canvass to correct such an error but rather requires an order of the district court directing the affected county canvassing board to first reexamine the ballots. Finally, the majority observes that errors in rejecting absentee ballots may be addressed in an election contest under Minn. Stat. ch. 209 (2008).
I disagree with the majority on at least three main points. First, I disagree with the majority's definition of "counting or recording of the votes for an office." Second, I disagree with the majority's construction *Page 235 of section 204C.39 as requiring a court order before a county canvassing board can correct any errors. Finally, I question the practicality of the majority's observation that such errors can be addressed in an election contest under Minn. Stat. ch. 209.
The majority's result is based, first, on an exceedingly narrow definition of the phrase "obvious errors in the counting or recording of the votes for an office" as used in Minn.Stat. § 204C.39. The majority concludes that because under Minn.Stat. § 204C.20, subd. 1 (2008), rejected absentee ballots are not counted and their votes are not recorded on election night, an error in deciding to reject an absentee ballot return envelope in the first place is not an "error in counting or recording of the votes."1 The majority's reliance on Minn. Stat. § 204C.20 is misplaced. According to section 204C.20, the number of ballots to be counted on election night is the sum of "the number of return envelopes from accepted absentee ballots" and "the number of signed voter's certificates" (or "the number of names entered in the election register"). Id. Section 204C.20 must be understood for what it is — a rough arithmetic check to be used by election judges on election night and no more.2
Second, there is no indication in section 204C.20 that it applies to county canvassing boards under Minn.Stat. § 204C.33 (2008). Under Minn.Stat. § 204C.33, subd. 1 (2008), the county canvassing board meets after the general election to "canvass the general election returns delivered to the county auditor." Two aspects of the plain language of section 204C.33 indicate that section 204C.20 does not apply to county canvassing boards: the meaning of "canvass" and the meaning of "general election returns."
"Canvass" is not defined in Minnesota law, but Black's LawDictionary provides two definitions relevant here —"to examine in detail; scrutinize" and "to formally count ballots and report the returns." Black's LawDictionary 220 (8th ed. 2004). In addition,Black's provides a very relevant example:
*Page 236 Id. (quoting Ray E. Kessey, Modern ParliamentaryProcedure 113 (1994)). Under the foregoing definition of "canvass," it is the duty of county canvassing boards to "evaluate] ballots to identify those that are invalid, blank, cast for illegal nominees, illegible, abstaining, and the like." As the majority notes, Minn.Stat. § 203B.12, subd. 2 (2008), requires that rejected absentee ballot return envelopes — and presumably the ballots inside — be "returned" to the county auditor on election night. Surely the purpose of that requirement is to make such return envelopes and their ballots available for inspection by the county canvassing board. See Minn.Stat. § 204C.33, subd. 1 ("the board shall promptly and publicly canvass the general electionreturns delivered to the county auditor." (emphasis added)). The majority's narrow limits on the authority of county canvassing boards is inconsistent with the meaning of "canvass" as this word is used in section 204C.33.When all the ballots have been collected, including those of the presiding officer, the secretary, and the tellers, the ballots are canvassed by the tellers. Canvassing the ballots means more than just counting. It includes evaluating ballots to identify those that are invalid, blank, cast for illegal nominees, illegible, abstaining, and the like, and reporting the total results to the presiding officer for his announcement of the results.
Furthermore, the county canvassing boards are to canvass "the general election returns delivered to the county auditor." The majority announces that "returns" means "the results of the counting of votes in the precinct, as recorded on precinct summary statements required by statute," noting among other things that on election night precinct judges are to complete "summary statements" and place them in an envelope labeled "Summary statements of the returns of the . . . precinct." In other words, the majority limits the meaning of election "returns" to the summary statements filled out by election judges on election night.
But a "summary" of something is not the thing itself. Minnesota Statutes § 204C.24, subd. 1, calls what is filled out on election night a "summary statement" of the returns. A summary of the returns should not be mistaken for the returnsthemselves. This point is supported by the legislature's references to both the "summary statements" and the "returns" in Minn.Stat. § 204C.28, subd. 1 (2008). Under subdivision 1 of section 204C.28, every county auditor is to remain at the auditor's office on election night in order to, among other things, "receive delivery of the returns" and "permit public inspection of the summary statements." In construing statutes, we are to assume that when the legislature uses different words in the same context, as it does here, it intends them to mean different things. Transp. Leasing Corp. v. State,294 Minn. 134, 137, 199 N.W.2d 817, 819 (1972).
Contrary to the majority's narrow definition of election "returns," I read subdivision 1 of section 204C.28 as including in "returns" everything that is delivered to the county auditor on election night. For example, ballots are to be delivered to the county auditor's office on election night. Minn.Stat. § 204C.27 (2008). Significantly, rejected absentee ballot return envelopes are also to be delivered to the county auditor. Minn.Stat. § 203B.12, subd. 2 (2008). Therefore, rejected absentee ballots are among the "returns" that the county auditor is to receive on election night. Given this statutory language, I conclude that rejected absentee ballot envelopes are plainly among the "general election returns delivered to the county auditor" that the county canvassing board is to "promptly and publicly canvass" under Minn.Stat. § 204C.33, subd. 1.3 *Page 237
Even if the language of section 204C.33 in this respect were not plain, a simple example illustrates the fundamental problem with the majority's reliance on section 204C.20 to limit the authority of the county canvassing board. Section 204C.20 requires election judges to remove all the ballots from the ballot box on election night, count them, and compare that total to the arithmetic sum of "the number of return envelopes from accepted absentee ballots" and "the number of signed voter's certificates" (or "the number of names entered in the election register"). Id., subd. 1. If there are more ballots in the box than this arithmetic sum indicates, the election judges are to put all of the ballots back into the box and then randomly withdraw ballots from the box until the number of ballots in the box equals the number of ballots to be counted. Id., subd. 2. The ballots so withdrawn from the ballot box are not counted on election night, id., subd. 3, but are preserved and returned to the county auditor,id., subd. 4.
What if the election judges miscounted the number of return envelopes from accepted absentee ballots or miscounted the number of names entered in the election register, as a result of which the election judges withdrew ballots from the ballot box unnecessarily? The ballots unnecessarily withdrawn from the ballot box on election night were not counted, and the votes on those validly cast ballots were not recorded, all because of a mistake by election judges. It is difficult to imagine a more "obvious error," yet under the majority's definition of "counting or recording of the votes" this is an error that cannot be corrected by the county canvassing board.4 Nevertheless, section 204C.20, subd. 4, requires those erroneously withdrawn ballots to be preserved and sent to the county auditor. Because the erroneously withdrawn ballots are returned to the county auditor, I conclude that they are also part of "the general election returns" available to the county canvassing board under Minn.Stat. § 204C.33, subd. 1. Indeed, I believe the reason for this requirement is obviously to allow the county canvassing board to correct such an error as part of its "canvass [of] the general election returns delivered to the county auditor."
Not only is the majority's narrow construction of "counting or recording" contrary to statute, it is also 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 *Page 238 construction of "counting or recording" does exactly that. The decision allows election returns that no one can reasonably agree reflect all validly cast votes to stand unless the disenfranchised voters petition the courts for redress in an election contest. 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. § 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 exist.
Although the majority finds support for its narrow definition of "error[s] in counting or recording" in Andersen, I read Andersen quite differently. Again, the majority holds that a county canvassing board lacks statutory authority to consider anything beyond the summary statements filled out by local election officials on election night. Yet our decision in Andersen countenanced county canvassing boards doing far more than that.
Andersen concerned the 1962 gubernatorial election, in which the original tabulation of votes showed Karl Rolvaag as receiving more votes than Elmer L. Andersen. 264 Minn, at 258,119 N.W.2d at 3.5 Ten county canvassing boards reconvened, retabulated the results of the election in certain precincts, and certified the retabulated results of those recanvasses to the Secretary of State. Id. If, as the majority suggests, Andersen limited county canvassing boards to considering only the summary statements prepared by local election officials on election night, then the ten counties that determined there had been "obvious error[s] in the counting and recording of the vote[s]" in the 1962 gubernatorial race, see Minn.Stat. § 204.30, subd. 1. (1961), could lawfully have done so based only on the summary statements prepared by local election officials on election night in November 1962.
But that is not what happened. At least one county reached the conclusion that there had been an error in "the counting and recording of the vote" based on evidence that the majority excludes from the election "returns." In Grant County, 31 absentee ballots were not originally counted because they had been "delivered into the hands of the election judges personally instead of being placed in the United States mail,"Andersen, 264 Minn, at 260, 119 N.W.2d at 4, as Minnesota law then required. See Minn.Stat. § 207.11 (1961) ("The judges in the several precincts at any election shall receive all ballots delivered to them on election day by officers or employees of the United States postoffice department in due course of the business of that department. . . ."). Under the majority's holding in this case, the error in rejecting those 31 absentee ballots — which *Page 239 had been neither counted nor recorded on election night — was not an "error in counting or recording of the votes" that could have been corrected by the county canvassing board because the error would not have been apparent from the summary statement of the returns. Nevertheless, as our opinion in Andersen reports, the Grant County canvassing board, "upon re-convening, considered the return of the ballots proper and counted them." 264 Minn, at 260,119 N.W.2d at 4.6 If we are to be true to not just the spirit but the letter of Andersen, we must similarly allow county canvassing boards to address errors with respect to rejected absentee ballots here.
In contrast to the majority's narrow definition of "counting or recording," I conclude that an error in rejecting an absentee ballot is an error in both counting and recording a validly cast vote. Errors in "counting" must necessarily include errors in deciding what to count, just as errors in "recording" must necessarily include errors in deciding what to record. The erroneous rejection of an absentee ballot is an error in both counting andrecording the vote because, if validly cast absentee votes are not counted and votes that have been validly cast are not recorded, the resulting vote totals cannot accurately reflect "the true vote of the people."
My second area of disagreement with the majority is in its interpretation of the process established by Minn.Stat. § 204C.39. The majority concludes that section 204C.39 does not allow a county canvassing board to unilaterally amend its results, even for the most obvious of errors "in counting or recording the votes." Rather, according to the majority, section 204C.39 allows a county canvassing board to amend its results only in response to a court order, obtained at the initiative of one of the candidates. In other words, under the majority's interpretation, one of the candidates must always petition for and obtain a court order before a county canvassing board can amend its results under section 204C.39.
Section 204C.39 permits a county canvassing board to reexamine its election results in response to a court order, but I do not read section 204C.39 as requiring a court order. Subdivision 3 of section 204C.39 calls upon a county canvassing board, after re-inspecting the ballots and returns, to submit to the county auditor an addendum to its regular report, which is to include the minutes of the canvassing board's meeting, a copy of the meeting notice given to the candidates, the total number of votes received by each candidate, and "a copy of the order of the court, ifany." Minn.Stat. § 204C.39, subd. 3 (emphasis added). The majority dismisses the phrase "if any," deeming it "insufficient to override the balance of the language in section 204C.39." Op. at — n. 12. But in construing a statute, our task is not to ignore that which is inconsistent, but to reconcile inconsistencies when we can. Lowry v. Cityof Mankato, 231 Minn. 108, 113, 42 N.W.2d 553, 557-58 (1950). Therefore, I conclude that section 204C.39 contemplates a situation in which the county canvassing board may re-inspect the ballots and amend its reported vote totals in the absence of a court order requiring it to do so. *Page 240
Thirdly, I disagree, as a practical matter, with the majority's observation that errors in rejecting absentee ballots are to be corrected in an election contest under Minn.Stat. ch. 209. Although Minn.Stat. § 209.02, subd. 1 (2008), allows "[a]ny eligible voter" to commence an election contest, I can find no mechanism under Minnesota law for a voter who cast an absentee ballot to find out whether his or her vote was ever counted. How, then, would a voter whose absentee ballot envelope was improperly rejected know that he or she must file an election contest to have his or her vote counted — much less to do so within seven days of the completion of the canvass, as Minn.Stat. § 209.021, subd. 1 (2008) requires? Further, an election contest filed over the erroneous rejection of an absentee ballot would presumably require the inspection of the absentee ballot return envelope. But it is not clear under the majority's application of Minn. Stat. § 204C.20 and its narrow definition of "canvass" that a rejected absentee ballot envelope is within the scope of the ballots that can be inspected under Minn.Stat. § 209.06. See Minn.Stat. § 209.06, subd. 3 (2008) (providing for "recanvass [of] the votes cast for the parties to the contest").
At this point, it is appropriate to give another example of why an obvious error in counting or recording absentee ballots can, and should, be addressed by a county canvassing board before the State Canvassing Board certifies a winner in the United States Senate election. This error in counting or recording appears in the documents submitted to us in this case. 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. 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 with Minn.Stat. § 203B.12, subd. 2(3) (2008), 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 that the two voters' absentee ballots were rejected because the voters were not registered to vote.
Yet there is evidence, which should have been readily available to the county canvassing board, that these two voters were properly registered to vote. The Secretary of State's voter identification record shows that both voters were 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.7 The other has voted in all general elections since 1994, all but two primary elections since that date, and several local elections.8 In all of these elections, both voted in person and most recently they voted in person in the primary election held on September 9, 2008.
Nevertheless, the ballots of these two voters were rejected, and their votes were 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 *Page 241 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 if 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.9 Again, I wonder how, as a practical matter, these voters will ever learn their ballots were rejected, much less do so within seven days of the completion of the canvass, as Minn.Stat. § 209.021, subd. 1, requires. Then, even if they were to timely learn that their ballots were rejected, the only way they get their votes counted under the majority opinion would be for them to commence an election contest.
I have three concluding observations. First, under Minnesota's election system, county canvassing boards are given considerable authority and discretion to fulfill their duty to accurately count votes validly 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 Norm Coleman, et al., were so reluctant to have this statutory scheme take its normal course. This process allows the State Canvassing Board to reach a result without excluding votes that are obviously cast in a valid manner.
Second, I am concerned by what I see as an inconsistency in the majority's opinion, which narrowly construes the term "counts ing or recording errors" — thus limiting the ability of county canvassing boards to deal with anything other than arithmetic errors — but nevertheless directs two of the candidates to make every attempt to agree unanimously as to what errors in counting or recording have been made in counting absentee ballots. Again, I appreciate the majority's attempt to see that some of the improperly rejected absentee ballots were counted. But the remedy it has provided was not requested by the parties, and I am not sure it can be properly ordered by the court under Minn.Stat. § 204B.44 (2008). Moreover, the inquiry ordered by the majority 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. 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 or recording."
Third, I take issue with the majority's position to, in essence, assign to two of the competing candidates — Norm Coleman and Al Franken — the decision as to which ballots are to be counted, while at the same time forbidding duly appointed election officials from correcting obvious counting or recording errors on their own. The majority holds that if Coleman and Franken agree that an absentee ballot should be counted, then that ballot can be counted; but, if either candidate objects, the objecting candidate has veto power over whether the vote is counted by the State Canvassing Board. What the majority has done is subordinate a citizen's right *Page 242 to vote in Minnesota's 2008 United States Senate contest — the right of that citizen to have his or her vote counted — to the post-election strategy of the candidates. It makes no sense to me that in our democratic society, we would give any candidate veto power over whether a citizen's vote will be counted. That decision should and must rest with the duly authorized election officials and the State Ganvassing Board.
The majority's directive, which I conclude lacks statutory authority, is particularly troublesome given the sophisticated voter information now available to political candidates and campaigns. Nowadays, it is not unusual for campaigns and political parties to have detailed information on voters, such as what elections — be it general, primary, local, or special — the voter participated in over a period of several years and how the voter responded to polling surveys. From this information, candidates and political parties can create a profile as to the likely party or candidate the voter prefers. The majority opinion has created the likely scenario that the candidates will take the power the majority has handed to them, combine it with their voter information, and use it as a tactical tool in their hard-fought contest for votes.10
A decision placing ultimate control over whether a citizen's vote is to be counted by the State Canvassing Board in the hands of the candidates leads to an untenable result. As the quote at the beginning of my dissent says: "It's not the voting that's democracy, it's the counting." I conclude that Minnesota has a statutory scheme in place to ensure that all validly cast votes are counted and recorded by local election officials and the State Canvassing Board and which allows that an "obvious error in the counting or recording of the vote" can and will be corrected after the initial canvass is completed. This statutory scheme is in place so that we can. "avoid the necessity of an election contest where possible,"Andersen, 264 Minn, at 262, 119 N.W. 2d at 5 (citing Minn.Stat. § 204.30 (1961)). It also avoids the "perversion" of an "election process" based on returns that "everyone concedes [are] erroneous." Id. at 269,119 N.W.2d at 9. The majority's decision does not permit this statutory scheme to work and it is for this reason I must dissent.
ADDENDUM
Voting record of first voter:Voting record of second 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 11/07/1995 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
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 11/07/2000 STATE GENERAL 09/15/1998 STATE PRIMARY ELECTION 11/03/1998 STATE GENERAL 11/05/1996 STATE GENERAL 09/13/1994 STATE PRIMARY ELECTION 11/08/1994 STATE GENERAL 11/04/2003 GENERAL ELECTION 09/12/2006 STATE PRIMARY 11/07/2006 STATE GENERAL 09/09/2008 STATE PRIMARY*Page 243
The election judges shall determine the number of ballots to be counted by adding the number of return envelopes from accepted absentee ballots to the number of signed voter's certificates, or to the number of names entered in the election register. The election judges shall then remove all the ballots from the box. Without considering how the ballots are marked, the election judges shall ascertain that each ballot is separate and shall count them to determine whether the number of ballots in the box corresponds to the number of ballots to be counted.