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Minn. judge grants access to rejected '08 ballots

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Ballot box
This ballot box holds absentee ballots marked in person at the Ramsey County elections office in St. Paul. The ballots are distributed to the correct polling places on Election Day.
MPR Photo/Tim Nelson

Six months after Democrat Al Franken tardily joined the U.S. Senate, a Minnesota judge has declared that uncounted absentee ballots from the drawn-out 2008 election should be open to public inspection.

      The New Year's Eve ruling from Ramsey County Judge Dale Lindman granted a media outlet's request to inspect absentee ballots rejected as flawed, potentially giving a new glimpse into a Senate race that stretched well into 2009. 

Franken outlasted Republican incumbent Norm Coleman in a recount and court battle and won by 312 votes.

      The ruling has its limitations and could be appealed. And there doesn't appear to be any legal avenue for Coleman to change the election's outcome.

      For now, the decision applies only to Ramsey County, Minnesota's second most populous. KSTP-TV and other Hubbard Broadcasting Corp. affiliates sued for access to the ballots there and have begun the legal process in Douglas, Olmsted and St. Louis counties, said Mark Anfinson, an attorney for the stations. No political interest is a party to the lawsuit.

      Anfinson said he hopes Minnesota's other 86 counties voluntarily defer to Lindman's ruling. The goal of the ballot examination is to fully understand what worked and what didn't in Minnesota's election so policymakers can consider law changes, he said.

      But even if as many as 10,000 uncounted ballots are eventually opened, it won't be as simple as adding to each candidate's tally.

"These ballots were reviewed and reviewed and reviewed, and determined not lawfully cast."

      "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."

      Rejected absentee ballots were a point of contention in the protracted election. Franken's lawyers fought to get them re-examined and have some included in the count.

 During an election trial, Coleman's attorneys tried to get more added by arguing that standards were inconsistently applied, with some counties taking a tougher stand than others.

      For absentee ballots to count in Minnesota, voters must be registered, have a qualified witness, mail their signed ballot envelopes back before to Election Day and not cast a replacement ballot at the polls.

   Marc Elias, one of Franken's lawyers, called the exercise meaningless.

      "These ballots were reviewed and reviewed and reviewed and determined not lawfully cast," he said. "The state of Minnesota has already determined the outcome of this election."

      A Coleman lawyer, Ben Ginsberg, didn't immediately return a message.

      In his order, Lindman said state law doesn't say for certain what becomes of rejected ballots. With proper steps taken to separate the ballot from the envelope bearing a voter's name, Lindman said opening them now poses no great danger of invading voters' privacy.

      "The identity of the voter and the content of his ballot is at no greater risk, whether opened by an election judge or by an authorized individual after the election has ended," the judge wrote.

      The Ramsey County Attorney's Office is considering whether to appeal and has two months to make that call, spokesman Jack Rhodes said.

      County elections manager Joe Mansky said more than 1,500 absentee ballots from St. Paul and its suburbs have never been opened because they came in too late, the voter submitted a replacement ballot or they were otherwise deemed defective.

             (Copyright 2010 by The Associated Press.  All Rights Reserved.)