I join Justice Paul Anderson's dissent. I write separately to briefly make four additional points and to emphasize three points made by Justice Anderson. The four additional points I want to make are:
1. The court misconstrues the meaning of Andersen.
While the court cites to Application of Andersen; Rolvaggv. Donovan, 264 Minn. 257, 261-62, 119 N.W.2d 1, 5 (1962), as part of the justification for its decision,Andersen, in fact, does not support that decision. Nor does it support the court's narrow construction of Minn.Stat. § 204C.39. To the contrary, Andersen supports the proposition that election laws are to be liberally construed and that county canvassing boards have the authority to correct obvious errors such as the ones alleged here. And,Andersen provides no support at all for the proposition that this court can reject the statutory scheme in favor of its own scheme for counting improperly rejected absentee ballots — a scheme, which, by its nature, ensures that some number of validly cast ballots will be excluded when the election results are certified.
Further, to the extent that the court relies on the statement in Andersen that the parties agreed that the election results were erroneous, I note that the parties inAndersen, while agreeing that there were errors, disagreed over what the errors were and the process to be used to correct them. Andersen, 264 Minn, at 258-59,119 N.W.2d at 3; see also Ronald F. Stinnett Charles H. Backstrom, Recount 66-83 (Nat'l Document Publishers, Inc.1964). Reminiscent of what has taken place in this case, at least one of the parties in Andersen argued that errors should be corrected when the correction inured to his benefit while at the same time attempting to preclude corrections that adversely affected him.264 Minn, at 269, 119 N.W.2d at 9-10. It appears that the action inAndersen was brought for that very reason.
To the extent that the court relies on the fact that the parties in Andersen objected to the State Canvassing Board counting amended results submitted by county canvassing boards because of "technical irregularities in arriving at the result rather than on a claim that the results are not right,"id. at 272-73, 119 N.W.2d at 11, the court takes theAndersen reference to "technical irregularities" out of context. The Andersen court permitted county canvassing boards to correct obvious errors and submit amended returns to the Secretary of State. Id. It then concluded that the State Canvassing Board could accept the amended county returns. Id. at 273, 119 N.W.2d at 12. The Andersen court placed the burden on the party attacking the amended returns to show that the corrections did not reflect the true vote. Id. at 272,119 N.W.2d at 11. Thus, if was in this context that the Andersen court concluded that the attacking party only objected based on "technical irregularities" and not on claims that the results were inaccurate. See id. Therefore, the court permitted the amended returns to be counted in Andersen. Here, as in Andersen, both parties agree that some absentee ballots were rejected in error. And, as in Andersen, even though the Coleman and Franken parties cannot agree on which specific ballots were improperly rejected or on the proper process to correct those errors, all validly cast ballots should be counted. But instead of ensuring that the *Page 244 final election results are accurate, the court's decision will result in some improperly rejected ballots not being counted because the parties cannot agree.
Finally, to the extent that the court relies onAndersen for the proposition that the phrase "obvious error in counting," as set forth in sections 204C.38 and .39, is limited to errors in the computation and reporting of numbers, it is not at all clear that the errors before theAndersen court were only errors of that type. It is clear, however, that the Andersen court did not limit the type of errors it permitted to be corrected to, as this court suggests, the "compilation and reporting of numbers contained in the precinct summary statements." TheAndersen court explained that Minn.Stat. § 204.30 (1961), "[f]or the first time," provided that "county canvassing board[s] could, if necessary, inspect the ballots in order to correct obvious errors." Id., at 263,119 N.W.2d at 6. And county canvassing boards did just that. In Blue Earth, Douglas, Le Sueur, Morrison, Watonwan, and Stevens counties, the Andersen court expressly stated that the counting errors were confirmed upon examination of theballots. Id. at 259-61, 119 N.W.2d at 3-6 (emphasis added). Obviously, examination of ballots involves more than computation and reporting of numbers. In Grant County, the court allowed the inclusion of 31 absentee ballots that had not been counted in the original returns. Id. at 260,119 N.W.2d at 4. Thus, while the court chooses selective phrases from Andersen to justify its decision, a complete reading of Andersen supports the conclusion that the correction of obvious errors as alleged here is permitted under Minn.Stat. §§ 204C.38 and .39.
In the end, the Andersen court permitted all identified errors to be corrected and rejected the attempt of one of the parties to distinguish between the types of errors to be corrected. 264 Minn, at 270, 119 N.W.2d at 10.
2. Election statutes should be interpreted to avoid absurd results.
Applying our rules of statutory construction, we construe statutes to avoid absurd results. State v. Clark,755 N.W.2d 241, 249 (Minn. 2008); Minn.Stat. § 645.17 (2008). Minnesota Statutes § 204.30 (1961), the precursor to Minn. Stat. § 204C.39 (2008), was passed by the legislature to avoid the necessity of election contests when possible.Andersen, 264 Minn, at 262, 119 N.W.2d at 5. At the time of the election that generated the Andersen litigation, section 204.30 provided that county canvassing boards could, on the agreement of four out of five county canvassing board members, unilaterally correct any obvious errors. Id. After Andersen, the statute was amended to implement procedures similar to those found in Minn.Stat. §§'204C.38 and .39 today. Act of Mar. 15, 1965, 1965 Minn. Laws 116, 117-18 (codified as Minn.Stat. § 204.30 (1967)). There is nothing to suggest that the amendment was intended to alter the legislative purpose of avoiding election contests when possible. Limiting "obvious error in counting" to errors in the computation and recording of numbers contravenes the statute's purpose by making election contests all but guaranteed in close elections. Moreover, it is unreasonable to think that the legislature would have put in place the elaborate procedures set out in sections 204C.38 and .39 solely for the correction of errors involving the computation and recording of numbers. Requiring a court order to correct such errors would result in a significant waste of judicial resources.
The court counters that the legislature could have implemented the process as a safeguard to ensure that the most vocal *Page 245 candidate could not exert undue political pressure on local county canvassing boards to amend their returns. I do not disagree that the legislature may have adopted the procedures set out in sections 204C .38 and .39 to prevent undue political pressure on local canvassing boards. In fact, I suspect, at least in part, that was the legislature's purpose. InAndersen, while both candidates, Andersen and Rolvaag, initially agreed to re-open a county canvassing board even though it had already completed its returns, Rolvaag subsequently took the position that such re-opening was illegal. Stinnett Backstrom, Recount, supra, at 71. Andersen then moved to re-open as many counties favorable to him as he could. Id. After Andersen pulled ahead in the vote count, Rolvaag decided that he would have to try to recanvass precincts with "obvious error[s]" that favored him.Id. at 73. But when Rolvaag was not successful in getting any canvassing boards to reopen, his political party accused Andersen of "applying pressure on county boards to disregard election laws and procedures to search for [Andersen] votes while at the same time attempting to prevent canvass recounts which appear to favor [Rolvaag]." Id. at 74.
Thus, while I agree that the rationale for the legislative changes was partly intended to limit undue influence on county canvassing boards, that fact has no bearing on this case. Before Andersen, the statute permitted county canvassing boards to unilaterally correct any obvious error when four of five canvassing board members so chose. AfterAndersen, the legislature amended the procedures to be followed when correcting obvious errors. But while the legislature changed the procedures to be followed, the legislature did not change or otherwise limit the scope of counting and reporting errors that could be corrected. Absent an express change in scope, our rules of construction lead inescapably to the conclusion that, as was the case before the amendments, the scope of correctable obvious errors goes beyond computation and recording of numbers and includes any and all obvious errors in counting and recording.1
3. The court implicitly concedes that counting includes the process of determining which absentee ballots are to be included in the county canvassing boards' reports.
The opinion reads, "[w]e begin by briefly reviewing the statutory provisions for processing of ballots." (Emphasis added.) The court's not-so-subtle effort to avoid using the word "counting" to describe which absentee ballots are to be included in the count for purposes of reporting the number of votes cast for the office, fails. A rose, by any other name, is still a rose. The process of determining which votes to include in the count of votes to be reported, by any other name, is the process of counting. As such, obvious errors in that process come within the scope of "obvious error in counting and reporting" as used in Minn.Stat. §§ 204C.38 and .39.
In detailing the counting process, the court notes that a recount's purpose is "to ensure that the votes cast in [an] election [are] accurately counted." The court then defines the scope of reviewable errors that may be corrected in a "recount" as errors *Page 246 in "the determination of the number of votes validly cast for the office." Curiously, while the court implicitly recognizes that the improper rejection of an absentee ballot constitutes an error in determining the number of votes validly cast for an office, the court nonetheless concludes that such errors do not fall within the scope of "counting" and are only subject to review in an election contest. That conclusion is premised on the erroneous view that the words "obvious error in counting" only include errors in the computation and reporting of numbers.
4. Minnesota Statutes § 204C.39 does not prescribe a deadline for counties to correct obvious errors in counting.
The court concludes that counties cannot correct obvious errors under Minn.Stat. § 204C.39 after the State Canvassing Board has canvassed the original results and an administrative recount is under way. In Andersen, we noted that if the legislature can provide that a court can order a canvassing board to reconvene to correct an error, it may also provide that the board can reconvene on its own once errors are discovered. Id. at 267, 119 N.W.2d at 8. But we did not decide whether the legislature had authorized this; we concluded that, even if canvassing boards did not have the authority to unilaterally reconvene as they had done, a court exercising its error-correcting authority could have ordered them to do so. Id.
The court here correctly notes that in Andersen we stated that under any construction of the existing statute, there should be a cutoff point at the time the state canvassing board met. Id. at 263, 119 N.W.2d at 5-6. Based on this, the court concludes that counties may not correct errors under Minn.Stat. § 204C.39 after the State Canvassing Board has begun an administrative recount. But, unlike the statute in effect at the time of Andersen, which provided that errors discovered while county canvassing boards were canvassing votes could be corrected, Minn. Stat. § 204C.39 today does not contain any language limiting when errors may be corrected. Thus, the statement in Andersen that county boards cannot correct errors after the state canvassing board has met has no effect today. Further, even if it did, the proper remedy here would be to exercise our error-correcting authority and permit the counties to amend their reports to reflect the true outcome of the election using the procedures set out in Minn.Stat. 204C.39. It is not to adopt a judicially-created process guaranteed to result in voter disenfranchisement.
The three points made by Justice Anderson in his dissent that I want to emphasize are:
1. The question presented by this case.
The question presented by the parties is whether obvious errors by local election officials in rejecting validly cast absentee ballots in the initial counting of the votes cast for United States Senator in the November 4, 2008, general election can be corrected using the procedures set out in Minn.Stat. §§ 204C.38 and .39.
2. Election statutes are to be liberally construed.
We are to liberally construe Minnesota's election laws, guided by the principle that "[s]tatutory regulations of the election franchise must be so construed as to insure, rather than defeat, full exercise thereof when and wherever possible."Flakne v. Erickson, 213 Minn. 146, 151, 6 N.W.2d 40, 42 (1942).
Here, instead of liberally construing the term "obvious error in counting" to ensure the full protection of the voting franchise, the court, applying a narrow construction, *Page 247 concludes that the erroneous rejection of validly cast absentee ballots cannot be corrected under either section 204C.38 or .39. Such a narrow interpretation is inconsistent with our past election law cases. For example, in Scow v.Gutches, we considered whether an election contest could be brought after a tie vote because the statute only provided for a contest after one candidate was "declared elected."129 Minn. 301, 303, 152 N.W. 639, 639 (1915). Although noting that a "strict and technical construction" of the statute would prohibit an election contest as there was no declared winner, we concluded that the statute should be liberally interpreted to permit an election contest in order to as-certain the true result of the election. Id. at 303-04,152 N.W. at 640. Similarly, in Grimsrud v. Johnson, a case involving the use of improper ballots in a school board election, we concluded that the improperly used ballots should be counted even though a literal reading of the statute would have indicated otherwise. 162 Minn. 98, 99-100, 202 N.W. 72,73 (1925). We concluded that voters should not be disenfranchised "[b]ecause some officer having to do with the election has not fully carried out what the statutes direct him to do . . . if it can be avoided by any reasonable interpretation." Id. at 100, 202 N.W. at 72.
Finally, in Andersen, we considered whether to permit correction of "obvious error in counting and recording," even though the statutorily prescribed timeline had not been followed. 264 Minn, at 261-62, 119 N.W.2d at 5. While a literal reading of the statute would have barred corrections, as the statute provided for correction while canvassing the votes, we construed the statute at issue to effectuate its purpose.Id. at 262-63, 119 N.W.2d at 5-6. In doing so, we noted that, while it would have been better for the errors to have been corrected during the initial canvass as provided by statute, the overall object of declaring the candidate with the most legal votes the winner should take priority over a prescribed method that could result in declaring the loser the winner. Id. at 271, 119 N.W.2d at 10-11.
Here, by its narrow construction of the phrase "obvious error in counting," the court's decision works to defeat, not ensure, the full exercise of the voting franchise.
3. The right to vote is fundamental.
"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live." Wesberry v.Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). That right, the right to vote, is a fundamental and personal right. State ex rel. South St. Paul v.Hetherington, 240 Minn. 298, 303, 61 N.W.2d 737, 741 (1953). By this decision, that most precious right is diminished.