Minnesota Senate Election, 2008

In November and December, I was a volunteer lawyer working on the Minnesota Senate Election Recount in Ramsey County. It was a great experience that required very little of me in terms of expertise. I was told at a training session that I was not there to interpret the law or make rulings about the law. I was not there to make decisions of any kind. I was there to lend gravitas to the room – a presence that was watching what the counters were actually doing. A side effect of participating in the recount is that I feel somewhat of an ownership interest in the result. I have been following the court battle and paid attention to the various rulings that were issued.

The final ruling from the three-judge panel was issued on April 13, 2009, and, yes, I read it. I found it to be quite interesting and well done. Whenever I read court rulings, I learn something and this was certainly no exception. Election law is not my area of expertise, so there was a lot to learn in this opinion.

One of the more interesting issues that the court addressed was the broad issue of absentee voting. We have always assumed that voting is a right to be enjoyed by all citizens eligible to vote. That is still true, but the court pointed out that absentee voting is a privilege and not a right. In other words, everyone is still entitled to vote, but the legislature made it easier for some who were unable or simply unwilling to go to the polls themselves. (Personally, I prefer going to the polls and casting the ballot among the hubbub and getting my “I voted” sticker.) The Minnesota Supreme Court noted in 1988 that “Since the privilege of absentee voting is granted by the legislature, the legislature may mandate the conditions and procedures for such voting.”

Viewing the process as a privilege allows the legislature and the courts to place more restrictions on this than on in-person voting. That is, one must meet the threshold requirements for absentee voting, and if one does not, for whatever reason, then that person’s vote should not count. The court stated that the individual voter was personally responsible for ensuring that the requirements were met. In other words, the voter could have appeared personally and made sure all was done correctly, but, for various reasons, did not and therefore casts a ballot that may or may not meet the requirements. If the ballot or the voter does not meet all the requirements, then that vote does not get counted – even if the error was on the part of the election official and not the voter.

The issue of absentee voting is addressed by the court more fully in the context of the equal protection argument raised by the Coleman camp. The court stated, “…neither the Equal Protection clause nor the Supreme Court’s ruling in Bush v Gore compel this court to order the opening and counting of ballots cast by individuals who failed to comply with the basic eligibility requirements codified in Minnesota law.” They effectively dismissed all of Norm’s arguments and lauded Minnesota’s election system, the Secretary of State’s office and the hard-working individuals who conduct the elections as volunteers and paid staffers.

If you would like to read the entire opinion, it can be found on the Minnesota Courts Website under "Minnesota Senate Seat '08 Election."