In a ruling issued Jan. 5, 2010, a Minnesota state district court judge granted a Twin Cities ABC affiliate the right to see and copy rejected and unopened absentee ballots from the 2008 election, calling the ballots "public data" for the purposes of Minnesota open records law. As the Bulletin went to press, the decision was pending further review by the Minnesota Court of Appeals.
In a June 22, 2009 letter to four different county election officials across the state of Minnesota, KSTP, a Twin Cities television station owned by the Hubbard Broadcasting Company, requested "access to all rejected and therefore uncounted absentee ballots that were received in connection with the November 2008 Minnesota general election," under the Minnesota Data Practices Act (DPA), Minn. Stat. § 13.01 et seq. The letter also stated that the station would respect "the sanctity of the private ballot, and the importance of voter confidentiality in the electoral process."
A June 22, 2009 story on the KSTP website said that the station was seeking the rejected ballots so that it could "try to determine how different counties decide to reject absentee ballots."
Ramsey County, which includes the city of St. Paul, refused the request, citing a provision in the DPA, Minn. Stat. § 13.37, that "sealed absentee ballots prior to opening by an election judge" are considered nonpublic data.
In his opinion, KSTP-TV v. Ramsey County, No. 62-CV-09-9240, (Minn. Dist. Ct. Dec. 31, 2009), Ramsey County District Court Judge Dale B. Lindman wrote that, rather than seeking the rejected absentee ballots themselves, the station was actually looking for any information that would explain why the ballots were rejected.
"Acceptance or rejection of the unopened ballots was presumably based solely on the sufficiency of the information contained on the face of the unopened envelope," Lindman wrote.
However, Lindman went on to say that, regardless of the requests, all rejected and unopened absentee ballots from Minnesota's 2008 general election are "public data that may be viewed and copied by the Plaintiffs subject to the voter's right of privacy."
In his ruling, Lindman noted that the statute does not specify how these ballots should be treated after an election is complete, and that the DPA requires "a presumption that government data are public and are accessible by the public for both inspection and copying unless there is a federal law, a state statute, or a temporary classification of data that provides that certain data are not public."
"[T]his court finds as a matter of law that the unopened and rejected absentee ballots in question in this case are public data which may be reviewed and copied," Lindman concluded.
Ramsey County was instructed to turn over its ballots, but also to take "all steps necessary, including redaction, to assure that the privacy of the voter and the sanctity of the ballot is maintained."
Mark Anfinson, an attorney for KSTP, told the Silha Center that Ramsey County had appealed the ruling and the parties were in the process of submitting written briefs to the Minnesota Court of Appeals. Anfinson noted that a positive decision from the court of appeals would be valuable to the station because Lindman's verdict is not binding precedent outside of Ramsey County, and a judgment from the court of appeals would apply to district courts throughout the state, paving the way for the release of the state's remaining ballots.
A Jan. 6, 2010 Associated Press (AP) story noted that rejected absentee ballots had been bitterly contested by opponents Al Franken and Norm Coleman during the protracted Senate election and recount process. After the recount, Franken was declared the winner by 312 votes. During the course of the recount, Franken's lawyers argued that the ballots should be re-examined, and Coleman's lawyers argued that standards were inconsistently applied, with some counties rejecting far more ballots than others.
The purpose of examining the ballots is to detect potential problems in Minnesota's election process, enabling policymakers to consider changes to the law, Anfinson said in the January 6 AP story. "There's no doubt that under any scheme of absentee ballot regulation, some of those would be rejected," Anfinson said. "There's considerable effort that's going to have to be invested in understanding why certain ballots weren't accepted and others were."
Marc Elias, one of Franken's lawyers, called the exercise "meaningless," according to the AP story. "These ballots were reviewed and reviewed and reviewed and determined not lawfully cast," Elias said. "The state of Minnesota has already determined the outcome of this election."
- RUTH DEFOSTER
SILHA RESEARCH ASSISTANT